Vennum v. Davis

• Citation: 35 Ill. 568,1864 WL 3093
• Parties: HIRAM VENNUMv.CHARLES C. DAVIS et al.
• Decision Date: 30 April 1864
• Court: Illinois Supreme Court

35 Ill. 568

1864 WL 3093 (Ill.)

HIRAM VENNUM

v.CHARLES C. DAVIS et al.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Superior Court of Chicago.

Bill in equity filed by plaintiff in error against defendants in error to vacate an execution sale of land belonging to complainant, and to have the collection of the judgment, under which said sale was made, perpetually injoined.

The material facts of the case are in substance as follows: Vennum and King, a firm composed of William Vennum and George King, who were, in 1857, engaged in trade in Milford, Iroquois county, were at that time indebted to Davis, Moody & Co., of Chicago, in the sum of $2,176.14; and, while so indebted, King's interest in the firm was purchasd by Hiram Vennum, the complainant, who had no means of knowing, and did not know of the existence of said debt, and was not to become liable for any of the debts of said firm. After the sale to complainant, he and William Vennum continued the business under the firm name of W. & H. Vennum, the whole business being managed by W. Vennum, complainant being otherwise engaged in business as a farmer. The proceeds of the sale of King's interest to complainant were by King applied to the payment of the debts of his firm. On Sept. 11, 1857, Wm. Vennum executed to Davis, Moody & Co., for said debt a joint promissory note, payable at Chicago one day after date, and bearing interest at ten per cent. per annum, signed by him in the names of the firms, Vennum & King, and W. & H. Vennum, the name of the latter firm being signed by him without the knowledge and consent of Hiram Vennum, his partner. Suit was brought in December, 1858, by Davis, Moody & Co., upon this note, against complainant, Wm Vennum, and George King, in the Court of Common Pleas of Cook county. The partnership between complainant and William was dissolved in January, 1859, and the proceeds of the sale of the assets at auction, divided upon the basis that the outstanding debts were of small amount, complainant being so informed by his partner, and believing such information to be correct. The suit on said note was not defended by complainant, who having been often sued for debts of the firm, W. & H. Vennum, supposed it was an honest debt contracted by the firm, W. & H. Vennum, and for which King might be security, and, accordingly, did not inquire about it; and on January 7, 1859, Davis, Moody & Co., obtained judgment thereon for the balance due, $1,941.74, under which, on the 9th of April, 1859, complainant's farm, in Iroquois county, was sold to Davis, Moody & Co., the plaintiffs in the execution. Complainant did not learn the facts connected with the execution of said note, till September, 1859, when, on the occasion of a visit to Chicago to learn the extent of his liability for the debts of the firm, W. & H. Vennum, contracted by W. Vennum, and for which numerous suits had been brought against him, he was informed of them by Davis, Moody & Co., who, together with William Vennum and George King were the only parties who had knowledge of the circumstance attending the giving the note and the consideration for which it was given. W. Vennum & King had meanwhile become insolvent. This bill was accordingly filed, upon the hearing of which in the court below the sale on said execution was set aside as to part only of said land, on the ground that it constituted the homestead of complainant.

The questions raised upon error are sufficiently stated by the court in their opinion.

Gookins, Thomas & Roberts, for plaintiff in error.Gallup & Hitchcock, and Scammon, McCagg & Fuller, for defendants in error.

BREESE, J.

On the assignment of errors, the plaintiff in error makes the following points: First. A party sued at law, having a defense of which he does not know, or of which he cannot avail himself at law, either for the reason that it is purely equitable in its nature, or because by the rules of law he cannot avail himself of it, may enjoin the judgment by bill in equity.

In support of this proposition, many authorities are cited, all of which we have looked into, and find the doctrine to be as stated.

As a general rule, if a party against whom an action is brought has a legal defense, he must avail himself of it in the suit at law. In the case of the Marine Insurance Company v. Hodgson, 7 Cranch, 333, MARSHALL, C. J., said: “Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.”

The spirit of all the cases to which reference has been made is, that a party must avail himself of every means of defense within his knowledge and power at the time of going to trial or he will be afterwards precluded from urging it.

In Le Grun v. Governeur and Kemble, 1 Johns. Cas., 502, KENT, J., said: “Every person is bound to take care of his own rights, and to urge them in due season and proper order. This is a sound and salutary principle of law. Accordingly, if a defendant having the means of defense in his power neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.”

Where a party is ignorant of a material fact, without any inattention or negligence on his part, so that he could not use it in any way until after the trial at law, a court of equity will in such case give relief after judgment when justice demands it. This was said by Vice-Chancellor WHITTLESEY in the case of Patterson v. Bangs, 9 Paige Ch., 630. In that case, the proof the complainants wanted was the testimony of one of their codefendants at law, proof which, of course, could not be reached by a bill of discovery. They seemed to suppose that a bill of discovery against the plaintiff at law would furnish the necessary proof. They tried that experiment...