Worden v. Crist

• Decision Date: 29 March 1883
• Citation: 106 Ill. 326,1883 WL 10214
• Parties: CHARLES WORDENv.HOWARD C. CRIST et al.
• Court: Illinois Supreme Court

106 Ill. 326

1883 WL 10214 (Ill.)

CHARLES WORDEN

v.HOWARD C. CRIST et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Mr. WALTER M. HATCH, for the appellant:

Even if the oral agreement set up by the defence be considered established by the oral evidence, the agreement was and is void by the Statute of Frauds. It is directly in the teeth of the 9th section of said statute. Rev. Stat. chap. 59, secs. 2, 9.

All trusts in lands for third persons must be in writing, signed by the party creating the trust. Smith v. Hallenbeck, 51 Ill. 223; Adams v. Adams, 79 Id. 517; Rev. Stat. chap. 60, sec. 9; Hovey v. Holcomb, 11 Ill. 660; Perry v. McHenry, 13 Id. 227.

The Statute of Frauds is the plain law of the land, and it is the duty of courts to enforce it. Hite v. Wells, 17 Ill. 88; Olt v. Lohnas, 19 Id. 576; Gaddis v. Leeson, 55 Id. 83; Albertson v. Ashton, 102 Id. 50.

The violation of a parol promise or trust, as to an interest in land, will not, of itself, constitute such a fraud as will take a case out of the Statute of Frauds. Rogers v. Simmons et al. 55 Ill. 76.

An oral contract or agreement, if void by the Statute of Frauds, can not be used as a defence any more than it can be used as a cause of action. Brown on Frauds, secs. 131, 133; Comes v. Lamson, 16 Conn. 246; Scotten v. Brown, 4 Harr. (Del.) 324; King v. Wilson, 5 Gray, 41.

Messrs. SPENCER, WELDON & MCNULTA, for the appellees:

The appellant, Charles Worden, had notice of the rights, whatever they may be, of H. C. Crist, and can claim no higher equities than James Worden himself can claim. The rights of appellees in this case are not embarrassed or arrested by the Statute of Frauds. The decree appealed from is more favorable to appellant than he was entitled to, and, therefore, he has no just ground of complaint. The decree as rendered does justice to the parties.

Mr. JUSTICE WALKER delivered the opinion of the Court:

About the 15th day of June, 1872, David L. Crist, claiming to own the tract of land in controversy, executed to James Worden a bond for a conveyance, upon his paying $502.80, on or before the 20th of May, 1873, and all taxes on the land. This was the balance of the purchase money on the lot. The bond provided, that if the money should be paid by that time the conveyance should be by general warranty, but if not, then by quitclaim deed. The land having been sold by the master in chancery to Alexander Campbell, Jr., on the foreclosure of a mortgage, and the redemption expiring on that day, it required the sum named in the bond to redeem, and it was designed to be used for that purpose. The certificate of purchase was in the hands of Williams & Burr, his attorneys, and the redemption was to be paid to them by arrangement between the parties, and they were to fill in the name of the person redeeming, in a blank assignment of the certificate. On the 16th day of May, 1872, four days before the payment fell due, Burr, for his firm, received from Worden $500 of the amount to be paid on the bond. He being absent, Crist called at the office of Williams & Burr the next day, and paid them $502.80, the full amount, and not knowing that Burr had, the day before, received the $500 from Worden, Howard C. Crist's name was inserted in the blank, and the certificate delivered to him. On the 24th of May, 1873, there was paid to Williams & Burr, $2.80 for Worden,--the balance of the sum named in the bond. The arrangement was to have a master's deed, to free the property from a claim of dower, and enable Crist to safely warrant the title. Subsequently, Howard C. Crist, the son of David L. Crist, received a master's deed, and it was recorded. On his return from Michigan, Worden paid the full amount of the money to Crist advanced by him to obtain the assignment of the certificate of purchase, but Howard C. refused to convey by general warranty, but tendered a quitclaim deed, which Worden refused to receive. Afterwards James Worden sold and assigned Crist's bond for a conveyance to complainant, who claims to have purchased without any notice of any kind of defence. On receiving the assignment of the bond he went into possession of the land, and has so remained ever since. James Worden afterwards became a bankrupt, and received a discharge from his debts.

These facts are not controverted. This of itself would make a clear case for a specific performance. It is, however, set up and relied on as a defence, that James Worden, before he assigned the bond, being desirous to borrow $1000 of the Home Bank, proposed to David L. Crist that if he would become his surety for the amount, Howard C. might hold the title, to indemnify him against liability to loss until the amount should be paid; that this arrangement was consummated and the money borrowed, and that there has been paid but $200 of the amount; that David L. Crist has died testate, and defendant Howard C. became and is the executor of his last will; that the note to the Home Bank has been filed and allowed against the estate. And it is claimed that Howard C. Crist, the executor, has a right, under that agreement, to hold this security to indemnify the estate against loss until complainant shall pay the debt.

It is urged that the evidence preponderates in favor of the appellant, and that appellees failed to establish their defence by the proofs heard on the trial. It is true James Worden denies most explicitly that he ever made an arrangement with D. L. Crist that Howard C. should hold the title to indemnify him as surety on the note to the Home Bank. But Howard C. testifies as positively and distinctly that the agreement was made, and states he was present and heard all that was said before his father and Worden went to the bank, and on their return they said he was to hold the title until the note was paid. His evidence is as positive as is that of James Worden. Again, Gill testifies most positively that James Worden admitted to him there was such an arrangement, stating in detail its terms. But it is insisted that these witnesses have a direct interest in the suit, and that James Worden's denial of the agreement should preponderate over their testimony,--that Worden is disinterested, and his evidence should therefore have the greater weight. It is true he testifies that he has no interest, but he stated to Gill that he could have had the deed before, but he preferred the title should remain as it was, because he had creditors. Nor does he or complainant testify complainant was not indebted to him in a sum...