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fails to disclose her interest, and, knowing what is being done, takes no steps to prevent it, she will be estopped from setting up her rights as a defense to a mechanic's lien.
We are satisfied the allegations of the amended petition were sufficient, and the demurrer was properly overruled.
In regard to the last point relied upon, that the decree is joint against both defendants, it is alleged, in the petition, that William L. Greenleaf has some interest in the premises. This is admitted by the demurrer. He was, therefore, a necessary party to the petition, for the purpose of cutting off his interest in the premises, by decree, whatever it might be.
But the decree finds a certain amount due petitioners, and declares the same to be a lien. It also orders the amount found due to be paid by defendants, within a certain time, and in default of payment, directs the sale of the premises.
It would be error to render a personal decree against William L. Greenleaf for the debt, and, in so far as this was done by the decree, it will be modified; in all other respects it will be affirmed, and appellees will be required to pay the costs of this suit.
Decree modified and affirmed.
80 523 125 308 125 521 80 523 150 416 150 126
80 523 169 214
80 523 e198 1517 e198 9517 80 5231
1. APPEAL—when it will lie. An appeal will lie to the Supreme Court from any decree against a party that will work a deprivation of his property or liberty.
2. A decree against a husband for the payment of money for attorney's fees and expenses of defending an appeal taken by him from an order committing him to prison for failing to pay money to his wife under a previous order for provisional alimony, rendered in a suit brought by her for divorce, is in the nature of a final decree, and an appeal will lie therefrom.
3. DIVORCE-court may award reasonable amount to wife for solicitor's fees and expenses of suit. The court, under our statute, has power to award
Opinion of the Court.
attorney's fees and other expenses in divorce causes, and the matter is largely in the discretion of the court, but such allowances must always be reasonable, having in view the wealth and social standing of the parties, and what would be reasonable in any case is a matter of evidence.
APPEAL from the Circuit Court of Cook county; the Hon. Join G. ROGERS, Judge, presiding.
Messrs. HERVEY, ANTHONY & Galt, for the appellant.
Mr. CHIEF JUSTICE Scott delivered the opinion of the Court:
A motion was made in this court to dismiss the appeal in this case on the ground the decree appealed from is interlocutory, and not final. The appeal taken is from a decree of the circuit court awarding attorney's fees, and money to defray the expenses attending the defense of an appeal which defendant had prayed from an order of the circuit court committing him to prison as for contempt for non-compliance with a previous decree for alimony and solicitor's fees in complainant's suit against defendant for divorce.
The question raised is one that has never been passed upon by this court, but, upon first impression, we are of' opinion the appeal will lie. It is a money decree, is for a specific sum, and is payable absolutely. No execution has been as yet awarded, but the court has the undoubted anthority to award an execution, or if payment was willfully and contumaciously refused, the decree might be enforced by attachment, as for contempt, or payment might be coerced by sequestration of real or personal estate.
By one mode or the other, the decree could be enforced, and if defendant has property, it could, in some way consistently with the practice in courts of chancery, be subjected to its payment. Such a decree does not seem to us to be merely interlocutory. It is more in the nature of a final decree, and it no appeal lies, this case affords an instance of a money decree against a party from which no relief can be had, no matter how unjust or oppressive. This ought not to be.
Opinion of the Court.
It is no answer to this position, to say defendant can have this decree against him reviewed on appeal or error, after final decree in the original cause. Of what avail wonld that privilege be to him then? The litigation might be protracted, and years elapse before any final decision could be reached. In the meantime, he has been imprisoned for disobedience to the decree, or his property under process of law been subjected to the payment of the sum decreed.
Nor does the fact an appeal is allowed impose any hardship not incident to other money decrees from which appeals may be prosecuted. On the theory alimony is for the immediate benefit of the wife, to enable her to prosecute or defend her suit against her husband on terms of equality, the only serious result would be, to delay the litigation until the propriety of the decree for temporary alimony and solicitor's fees could be determined in the appellate court. On the contrary, if an appeal should be denied it might subject defendant to very great hardships in many cases, as the sequel will show. It is apprehended there can be no decree against a party, that will work a deprivation of his property or liberty, from which no appeal or writ of error will lie. Such is the decree against defendant. Under it he may be deprived of his liberty, or his property subjected to levy and sale.
Entertaining jurisdiction of the cause, but one other question arises, and that has relation to the amount ordered to be paid—whether it is justified by the facts in the case. Undoubtedly, the court, under our statute, has power to award attorney fees and other expenses in divorce causes, and the matter is largely in the discretion of the court. But this court has always assumed jurisdiction to review the action of the court below in the allowance either as to alimony or solicitors' fees, and its right to do so has not been qnestioned. Blake v. Blake, 70 Ill. 618.
Such allowances must always be reasonable, having in view the wealth and social standing of the parties. What would be suitable alimony for the wife, or reasonable counsel fees, is a matter of evidence.
Statement of the case.
We have examined with care the evidence in this cause, and we can not avoid the conclusion the sum allowed for attorney's fees and expenses of the suit is unreasonable and oppressive in the extreme, in view of the services rendered and to be rendered. The record has been incumbered with a vast amount of useless matter, wholly irrelevant to this application, and if counsel choose to perform this valneless labor, he will not be permitted to charge defendant for his services. The decree will be reversed and the cause remanded.
80 526 181 411 80 526 100a 1447
GIDEON MARLETTE et al.
1. CHANCERY-rescission of contract for fraud-laches. The doctrine is well settled in this court, that unreasonable delay in commencing proceedings to rescind a contract on the ground of fraud, will prevent relief in a court of equity.
2. Where a party is induced to sell and convey land, and to take in payment the transfer, by delivery only, of notes on an insolvent person through the fraud of the purchaser, in August, 1858, and he discovers the inability of the maker of the notes to pay the same, and the residence of the purchaser in the fall of 1858, and brings no suit to rescind the sale until in 1865, his laches will be so unreasonable as to deprive him of equitable relief.
APPEAL from the Circuit Court of Kane county; the Hon. HIRAM H. Cody, Judge, presiding.
This was a bill in chancery, by Samuel McCarty against Gideon Marlette, Sarah M. Marlette, James West, and Jennie Marlette, to set aside the sale and conveyance by complainant to Gideon Marlette of certain real estate in the city of Aurora, in this State, on the ground of fraud. The court below dismissed the bill.
Opinion of the Court.
Messrs. BROWN & SOUTHWORTH, for the appellant.
Mr. R. G. Montony, for the appellees.
Mr. JUSTICE BREESE delivered the opinion of the Court:
This is an appeal from the chancery side of the circuit court of Kane county, in proceedings therein commenced by Samuel McCarty against Gideon Marlette and others, praying an injunction and for general relief, alleging fraud by defendants in a sale of a lot of land in the town of Aurora, the fraud consisting in the transfer, hy delivery, of certain notes by defendants to complainant, as the purchase price of the lot, and praying tiirther that the sale be set aside.
The court dismissed the bill, and on this appeal by complainant we have considered it necessary to notice only the defense set up by the defendants in their answer to the bill. That defense was laches on the part of complainant. It appears
the sale of the lot was made to defendant Gideon Marlette by complainant in August, 1858, and the notes of Abram Davis delivered at the same time in full payment thereof. When the first note fell due, some time in the latter part of 1858, complainant called on the maker, who resided at Chicago, and demanded payment, which was refused. When the second note became due, some three months thereafter, he again called on the maker, who refused payment on the ground that he had no property. At this interview Davis told complainant where Gideon Marlette lived.
It was then in the power of complainant to commence proceedings against Marlette to cancel the sale, as constructive notice to him could have been had by publication, and Marlette placed in statu quo by a surrender to him of the notes.
This, complainant did not do, delaying to commence proceedings for such purpose until 1865, nearly six years thereafter, and in the meantime suing Davis upon the notes to judgment. The fact of Davis' inability to pay the notes was as apparent in 1858 as it was when this action was commenced, and the doctrine is well established in this court, that unreasonable