Tunison v. Chamblin

• Decision Date: 31 January 1878
• Citation: 1878 WL 9886,88 Ill. 378
• Parties: DEWITT C. TUNISONv.TIBITHA C. CHAMBLIN et al.
• Court: Illinois Supreme Court

88 Ill. 378

1878 WL 9886 (Ill.)

DEWITT C. TUNISON

v.TIBITHA C. CHAMBLIN et al.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. INGERSOLL & PUTERBAUGH, Mr. W. S. BUSH, and Messrs. DEARBORN & CAMPBELL, for the appellant.

Mr. E. A. WALLACE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This record discloses the fact that the father of appellant, Tunison, in April, 1851, when the latter was about ten years of age, entered the land in controversy, at the United States land office, in the name of his son; that appellant executed a deed, first, to his father, on the 8th day of March, 1859; and a deed, claimed to have been a mortgage, which has been paid, to Mundy, on the 16th day of July, 1860. He also made another deed, to Chamblin, on the 1st of August, 1859, which is sought to be set aside, and a deed was made by Tunison to Chamblin, on the same date, and a deed from appellant to James H. Matheny, of the date of May 25, 1860; but it is claimed that this last deed is a forgery.

On the 16th day of July, 1860, William C. Tunison, the father of appellant, and Chamblin, submitted certain differences to two arbitrators, who found an award, in favor of Chamblin, for $1552.48; and Tunison, on the 20th of that month, executed a power of attorney to G. W. Shutt to confess a judgment in favor of Chamblin, “in any circuit court in Illinois, or any other court having jurisdiction in said State,” for that sum, which was acknowledged before the county clerk of Sangamon county. On the next day, Shutt, under and by virtue of the power, confessed a judgment for that amount, in the circuit court of Cook county, and on the same day an execution was issued thereon, and sent to the sheriff of Mason county. He received it on the 31st of that month, and levied it on the land in question, with other lands, on the same day, and it was returned on the 15th day of March, 1866, satisfied by sale of the land. A certificate of levy was filed, in the proper office, on the day the levy was made, and, also, a copy of the certificate of purchase on the 4th day of November, 1865. Chamblin became the purchaser under this sale on execution.

At the April term, 1859, of the Sangamon circuit court, Chamblin obtained another judgment against Tunison for $575.55, on which, within a year, an execution was issued, and returned no property found; but another execution was issued on the 21st of July, 1860, to the sheriff of Mason county, which was levied on the land in controversy on the 1st of the next August, and the land was sold under it, to Chamblin, on the 4th of December, 1865, and Chamblin procured deeds under these sales.

On the 14th day of January, 1865, complainant filed his bill, in the Mason circuit court, to have his deed to Chamblin set aside as a cloud on his title. As many as three amended bills were filed during the progress of this cause. Defendant answered each, and filed a cross-bill, alleging the purchase of the land from the father of complainant in August, 1859; that complainant, in March of that year, conveyed the land to his father; that the deed from the father to him has been lost; that, since the commencement of the suit, complainant had sold portions of the land to Brown and Case; and prays that his title be established; that Brown and Case be decreed to convey to him, and for the removal of clouds from the title of defendant. Answers were filed to the cross-bill.

A hearing was had in the court below on the bill, amended bills, answers thereto, the cross-bill and answers thereto, replications, exhibits and proofs, and the court below found that the father of Tunison, prior to and at the time the land was entered, was in embarrassed circumstances and insolvent, and, to be able to control the same, and for his own use and benefit, and not as a gift to his son, entered it in his name, and that he held the same in trust for his father, and not in his own right; and to reverse the decree complainant appeals.

It is urged that the court below erred in granting the temporary injunction in the case. It has been so repeatedly held by this court that error can not be assigned on such an order, that the practice must be regarded as settled, and we must decline to further discuss the reasons for the rule.

It is also urged that the court below erred in the admission of improper evidence. This court will never, in a chancery proceeding, reverse for that reason, even where it is apparent on the face of the record. The court hears and determines the case upon the proper evidence before it; and whatever may be before it, we will presume the court only considered the legitimate evidence pertinent to the issues, and that the decree was based on it; and when the record is brought to this court, the case will be heard on the proper evidence contained in the certificate of the judge who tried the case, disregarding all irrelevant and improper testimony. This has been so repeatedly announced by this court that it must be held to be the settled practice. To object to such well settled questions of practice but incumbers the argument, and has no tendency to elucidate the real questions involved. The record in this case is voluminous, and contains much irrelevant evidence that greatly enhances the labor of separating the material from the foreign matter that should not have been brought into the case; but we shall give the conclusions at which we have arrived, as the result of a patient and attentive perusal of the proofs before the court below, on the hearing, without attempting to discuss in detail all the testimony or pointing out the irrelevant portions, but will be content to announce conclusions reached from the record.

After such a length of time, from the frailty of human memory, we can not expect exactness or minute details in the evidence of witnesses. Again, many persons who, no doubt, could have given important testimony in reference to the case are dead, and others have forgotten occurrences that took place at the time; but the evidence of Cheeney, Williams, Gonnly, the deputy sheriff, Matheny, Tomlins, Hardin, Cogeshall and Odan, when all considered together, we think, clearly shows that C. H. Tunison was, at the time he entered the land, very much embarrassed--was in failing circumstances, if not at the time insolvent; nor do we think their evidence of little weight, as it is clear, direct, and based on information they at the time had. They were, most of them, intimately acquainted with him and with his circumstances, and each testifies according to the extent of his knowledge and recollection.

The fact that Tunison, about that time, was procuring the entry of other lands by Williams, in his name, and taking bonds for conveyances, is strong evidence that he had no means with which to purchase and pay for them, or he would have entered them in his own name; but they were entered by Williams, with his own money, in his own name, and he held them as security for the money thus advanced, giving bonds for conveyances; and Williams, who entered the lands in his own name for Tunison, testifies that Tunison was hard run--was considered as embarrassed; and he had business transactions with him in 1851 and 1852. This evidence is important as explaining his financial condition, as the money was evidently advanced, as a loan, at twenty per cent.

Cheeney testified that, in the spring and summer of the year 1851, Tunison was embarrassed; that there were executions against him, and he was keeping out of the way of officers; and whilst he did not know the fact, it was reported amongst his creditors that he was unable to pay his debts; that, about that time, Tunison was breaking prairie in Cass, and, he heard, in Mason county, “and couldn't venture to bring his teams to Springfield,” where he resided; that “from 1851 he was hard pressed, involved in law suits, and borrowed money wherever he could get it.”

Gonnly, who was deputy sheriff, testified that he knew Tunison well from 1841 until his death; that he does not recollect the time, but it was about 1851 “he broke up;” that he was considered insolvent in 1851 and 1852; that, about the time Williams entered the land, “we understood he was broke up.” This witness says Tunison was indebted to Lewis and Johnson, and thinks the amount was large; that Lewis, Tunison & Johnson were indebted in St. Louis, and says the amount must have been large; that Tunison removed from Springfield in 1852 or 1853, and the time he was indebted was before he left.

Hardin, who resided in Mason county in 1851 and 1852, and was then sixteen or seventeen years of age, knows that Tunison broke prairie, in those years, in that county, and that in the year 1852, whilst thus engaged, his property, or a portion of it, was seized, under some kind of legal process, and a portion of it was smuggled and got out of the way; that, “after the seizure of his property in 1852, his reputation for solvency in Mason county was lost.”

Cogeshall, who lived in Mason county in 1850 and 1851, and sold Tunison some oxen in the former year, in the early part of the next year went to Springfield to collect a note of $80 or $90 Tunison owed him on the sale of the oxen, and was there informed he could not make the money.

The other witnesses gave testimony corroborating the evidence of these...