Walter v. Klock
| Decision Date | 30 September 1870 |
| Citation | 55 Ill. 362,1870 WL 6430 |
| Parties | ELLEN WALTERv.CLARISSA KLOCK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Chief Justice, presiding.
This was a suit in chancery, instituted in the court below, by Ellen Walter, to enforce the execution of an alleged trust. The complainant was the owner of the premises in controversy, subject to two mortgages, one to Joseph Peacock, for $2700, and the other to David Sears, Jr. which was assigned to the city of Chicago, for $3300. The remaining facts are presented in the opinion of the court.
Mr. GRANT GOODRICH and Mr. SIDNEY SMITH, for the appellant.
Messrs. MILLER, VANARMAN & LEWIS, for the appellees.
In 1866, upon a bill brought to foreclose a mortgage on the premises in controversy, wherein Joseph Peacock was complainant, and James H. Cochrane, Philander Hickox, Ellen Walter and the city of Chicago, were defendants, a decree was rendered ordering a sale. In compliance with the decree a sale was had, and Duncan McCollum was the purchaser, for $6000, the amount of the mortgages. He received a deed and had it recorded.
McCollum died February 28, 1867, having, before his death, executed the following paper:
“Having purchased and become sole owner, title fully invested in me, to following described property, to-wit: the east half of the west half of lot 1, (one,) block 28, (twenty-eight,) original town of Chicago. Now, in consideration of ten dollars, to me in hand paid, and in consideration of $6000, to be hereafter paid, as herein mentioned, I now sell, and agree to deliver deed of said above described property, to Solon Nickerson, or assignee, on their payment to me, within thirty days, of $3300, and remaining $2700 in sixty days from date hereof. My deed to be a special warranty, calling for no other title than such as I procured at master's sale, May 8, 1866. Signed this fourteenth day of October, 1866.
D. MCCOLLUM.”
The property described therein is the same purchased by McCollum at the sale, and now in contest. Mrs. Walter filed this bill against Peacock and the widow and heirs of McCollum, and prayed for a conveyance. Pending the suit, Mrs. McCollum married one Klock, and hence her name as it now appears in the record.
The bill avers that at the time of foreclosure, the complainant was the owner of the equity of redemption; that McCollum and Peacock executed their joint note for $3300, which was discounted at bank, and out of the proceeds the mortgage held by the city was paid; that Peacock took up the note when due, and that McCollum paid no part of the $6000, except $700, which he received from the rents of the property.
It was further averred that McCollum purchased at the request of complainant, with the understanding that he should take the title in trust for her, and hold it as security for any sum he might advance.
Peacock was paid between $6000 and $7000 by complainant.
The statute of frauds was interposed as a defense, and the court below dismissed the bill.
There is no dispute of the facts that McCollum purchased the property at open sale; a deed was executed to him, which was duly recorded; he, as principal, and Peacock, as security, gave a note for $3300, which was discounted, and the proceeds applied towards the satisfaction of the decree; that he received the rents, and had an agent superintending the property for him; and that six months after the sale, with the knowledge and approbation, and by the direction of complainant's agent and brother, he executed the writing to Nickerson, claiming the sole ownership of the property, and agreeing to sell and convey the same upon the payment of $6000.
Can the title, thus acquired and acknowledged, be set aside by parol proof? Can his heirs be divested of title without the payment of the money stipulated in the written agreement?
If Peacock has paid the note, or if any part of the purchase money is still due to him, the estate of McCollum is liable therefor. The note was never surrendered to McCollum in his life time, or to his personal representatives since his death. Hence, upon the facts presented, it would be the most glaring fraud to deprive his heirs of both money and property.
Appellant claims that McCollum was her agent; purchased for her benefit; and that it would operate as a fraud upon her to permit...
To continue reading
Request your trial
-
Bohanan v. Bohanan
...28 Ill. 454; 4 Kent Com. 305; Perry v. McHenry, 13 Ill. 227; Fleming v. McHale, 47 Ill. 282; Remington v. Campbell, 60 Ill. 516; Walter v. Klock, 55 Ill. 362. A resulting trust can only arise at the time of the conveyance, and from the fact that money has been paid by one and conveyance mad......
-
Vallette v. Tedens
...454;Williams v. Brown, 14 Ill. 200;Remington v. Campbell, 60 Ill. 515;Sheldon v. Harding, 44 Ill. 68;Holmes v. Holmes, Id. 168; Walter v. Klock, 55 Ill. 362. The evidence must show a contract of which the precise terms clearly appear within the rule laid down by the authorities on this subj......
-
Evans v. Moore
...generally by all courts. A few of the many cases decided since the Lantry Case, where that case was cited with approval, are Walter v. Klock, 55 Ill. 362;Fischbeck v. Gross, 112 Ill. 208;Biggins v. Biggins, 133 Ill. 211, 24 N. E. 516;Champlin v. Champlin, 136 Ill. 309, 26 N. E. 526,29 Am. S......
-
Lill v. Brant
...660; Perry v. McHenry, 13 Ill. 277; Seaman v. Cook, 14 Ill. 501; Lantry v. Lantry, 51 Ill. 458; Rogers v. Simmons, 55 Ill. 76; Walter v. Klock, 55 Ill. 362. An absolute deed, if intended as security for a debt, will be held as a mortgage: Rev. Stat. 1845, 105; Rev. Stat. 1877, 676. But such......