Tucker v. Conwell

• Decision Date: 31 January 1873
• Citation: 1873 WL 8260,67 Ill. 552
• Parties: NATHANIEL S. TUCKER et al.v.SAMUEL C. CONWELL et al.
• Court: Illinois Supreme Court

67 Ill. 552

1873 WL 8260 (Ill.)

NATHANIEL S. TUCKER et al.

v.SAMUEL C. CONWELL et al.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mason county; the Hon. CHARLES TURNER, Judge, presiding.

This was a bill in chancery, by Nathaniel S. Tucker and Henry Mansfield, against Samuel C. Conwell, James F. Kelsey and James M. Ruggles. The facts, and object of the bill, are stated in the opinion.

Messrs. LACEY & WALLACE, for the appellants.

Messrs. DEARBORN & CAMPBELL, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellants filed a bill in chancery, in the Mason circuit court, against appellees, to enjoin the master from making a deed to Conwell, and to remove a cloud upon their title to N. E. qr. sec. 32, T. 21, R. 8 W., 3d P. M.

It appears that Conwell purchased of one Reeder the land in controversy, and afterwards sold it to Alexander Croskery, who, to secure the purchase money, executed notes and a mortgage on the land. Croskery sold the land to one Berry, who gave to him his notes and a mortgage, and he transferred them to Conwell; that, afterwards, Conwell released the west half of the quarter from the mortgage, and in May, 1857, Berry sold that half to one Shubert, who, in February, 1859, sold it to one Morris, and he mortgaged it to Conwell and one George N. Walker, to secure the payment of his promissory notes which, it is claimed, were accepted in satisfaction of Berry's notes; that, in August, 1857, Berry sold the east half of the quarter of the land to one Adkins, who gave Berry a mortgage on the land to secure the purchase money. In August, 1858, Adkins sold to Morris, who mortgaged the whole quarter to Parker Russell & Co.; that Morris subsequently conveyed to Beaman, and others composing that firm, the east half, and they afterwards foreclosed their mortgage against Morris and others, and the entire quarter was sold by the master in chancery, and Parker Russell & Co. became the purchasers, and the land not having been redeemed, they obtained a deed; that they afterwards sold the land to appellants; that they entered into possession, and had so remained until they filed their bill.

It also appears that Walker and Hancock, to whom the Berry notes were assigned, filed a bill, and at the October term, 1860, obtained a decree against Berry and Morris, and sold the land, and Conwell became the purchaser, and afterwards obtained a master's deed.

It is charged that these notes had been paid, and that Conwell knew the fact when he purchased; that, in August, 1867, the lands were sold by the master in chancery under a judgment in scire facias against Alexander Croskery, on the note last falling due on his purchase, and Conwell became the purchaser at that sale.

It is charged that the proceeding by scire facias was void, and that Conwell or Kelsey, who claimed an interest in the land, are about to receive a deed therefor from the master in chancery, under the sale in the proceeding in scire facias. It is claimed that the Croskery notes were all paid as well as the Berry notes, before that proceeding was instituted. The court below, on a hearing on the bill, answers, replications and proofs, dissolved the injunction, dismissed the bill, and assessed $300 damages for wrongfully suing out the injunction, whereupon complainants bring the case to this court by appeal, and ask a reversal.

We have examined the evidence in the case with care, and are constrained to believe that it proves that all of the Croskery notes were paid before the scire facias was sued out. Conwell, in his testimony, gives it as his opinion that it has never been paid, but very fairly says that he depends more on the records than on his memory for the facts. On the other hand, several witnesses swear positively to either payment, or facts that clearly show payment was made.

Berry swears that, when he purchased the land from Croskery, he gave his notes, and a mortgage on the land to secure them, to Conwell, in lieu of Croskery's notes, and paid $300 in addition in notes on Adkins and Blakely, and the balance of the price of the land in money; that the Croskery notes were, at the time, all given up but one, and Conwell said that was mislaid, but would be surrendered as soon as it should be found.

A significant fact in support of his testimony is, that the Berry notes were given for the amount of Croskery's notes and interest, or within one dollar of the amount, and were made payable at the same times they severally fell due. It is true, that Berry says in his testimony that he gave his notes to Conwell, when he, in fact, gave them to...