Imágenes de páginas

no other bid being received, the master de , better bids for said property, and asked apclared the same sold, and, believing appel pellant to return to the salesroom at once, lant to be the representative of said com as the proceedings were to be reopened. Applainant, remarked, “That will leave you a pellant and Wilson refused to return to the deficiency of about $3,800." Immediately up salesroom, and Horner informed them there on such announcement of the master the ap that he would return and bid the sum of pellant left the salesroom without depositing $7,000 on behalf of complainant, and imor offering to deposit any cash or making mediately returned to the salesroom, arrivany arrangements for the payment of the ing there in about 15 minutes after 1 o'clock, same. The master, being under the impres and advised the master of the conversation sion that Slack represented the complainant, between himself, the appellant, and Wilson. said nothing to him about the payment of The master then announced publicly that no cash; it being the custom and practice of cash having been deposited and said purmasters in chancery in Cook County, when ported sale having been opened and conducted property is bid in at a sale in a foreclosure under the misapprehension of the master, as suit by the complainant (if such bid is not in aforesaid, and because of his haste in makexcess of the amount due under the decree), ing the said alleged sale, the same would be to credit the amount of his bid upon the reopened for higher and better bids, and amount found due him in the decree, and when called for other bids upon the property. Horthe property is bid in by one other than the ner, on behalf of complainant, offered the sum complainant and the decree provides a sale of $7,000, and, being the highest and best bid for cash either to require the amount of the received at that time, the premises were bid to be paid in cash as the property is struck struck off to the complainant in said bill, the off, or a substantial deposit made. As appel German Old People's Home, for said sum. lant and Wilson were leaving the salesroom, Horner's reason, as stated by him, for not beand just as they had stepped out from the door, ing present when the property was first ofthey were met by Henry Horner, Jr., who was fered for sale, was that the watch he carried the solicitor for the complainant in the fore showed the time to be 3 minutes of 1 o'clock closure proceedings, who, being unaware of when he reached the salesroom, the clock at what occurred in the salesroom, asked ap said salesroom registering but a few minutes pellant and Wilson to return to said sales after 1. The master filed his report showing room, as he, Horner, was going to bid in the facts and reporting the sale to the comsaid property on bebalf of the complain plainant, and in his report made a complete ant. Appellant and Wilson refused to return. statement to the chancellor as to what transWhen Horner entered the salesroom, the pired between all the parties at the sale. master was still on the raised platform from Appellant filed an interrening petition, praywhich the property was offered for sale, mak ing that the sale of the premises to coming a notation regarding the sale. Horner plainant be disaffirmed, and that the sale of immediately asked the master if he was ready the premises to himself be approved and conto offer for sale the premises, and the master firmed. On the same day the master filed thereupon informed Horner that his (Hor an answer to said petition, and the complainner's) representative had just been in and ant in said cause also filed its answer to the bid $3,000 at said sale. Horner replied that intervening petition. Exceptions were filed no one had represented him and asked the by appellant to the master's report of sale, master who made the bid, and was then in and upon a hearing on April 13, 1904, upon formed that the property was bid in the said petition and the sworn answers thereto, name of William Slack for $3,000. Horner the exceptions of said Slack to said master's then informed the master that appellant was report, and the affidavits, the court found, in the defendant's solicitor. The master then substance, that because of the misapprehensaid to Horner that, acting under the impres sion, mistake, and error involved in said sale sion that the appellant represented the com all parties interested and prospective bidders plainant, he had not demanded any cash and did not have an equal and sufficient oppornone had been paid, and that the purported | tunity to bid, and also because no cash was sale had been made under a misapprehension paid or deposited upon said bid of appeland mistake by himself as to the status of lant the bid of said appellant should the bidder. The master, being informed by not be accepted or considered, and that, Horner that appellant and Wilson had just if said sale had been held in such a left the salesroom, asked Horner to go out manner as to give all intending bidders an and ask them to return, which he did, and on opportunity to bid, the premises would have meeting them at appellant's office, which was brought at least. $7,000. It was thereonly a short distance, informed appellant that fore ordered by the chancellor that both the the master had instructed him to say that bid of the complainant in said cause, as well the sale would not be made for the sum of as that of the appellant, be rejected and a re$3,000 offered, on account of the misappre sale had. An order was entered dismissing hension and because no cash had been paid, the petition of Slack for want of equity, from and informed them that the master would which order a writ of error was sued out in immediately proceed to receive higher and the Appellate Court, and this is an appeal from the judgment of the Appellate Court , of price as is shown to exist in this case, ceraffirming the decretal order of the circuit tainly it could not be said that the sale made court.

to appellant was just and equitable as beCharles K. Ladd, for appellant. Henry

tween all the parties interested. The master Horner, Jr., and Charles Goodman, for appel

in his statement says that, if he had not been lees.

mistaken as to the identity of appellant, be would undoubtedly have compelled him to

comply with the terms of the decree as to RICKS, J. (after stating the facts). As

payments. As soon as he learned the identity will be seen from the above statement of

of the purchaser and learned that he was facts, the sole question presented in this case

not acting for or representing the complainwas the right of the chancellor to set aside

ant, he at once notified appellant that because the sale made by the master and order an.

of the mistake as to the person and appelother sale, or whether or not the appellant

lant's failure to pay the purchase money or was entitled to the property under his bid.

make a deposit he would resell the property. In our opinion the chancellor had the right

This was within his power. In Dills v. Jasto order the resale of the premises, or even to

per, 33 Ill. 262, in discussing a case much like have accepted the sale as made by the master

the one at bar, it is said (page 273): "In this and reported to the court for the $7,000. The

country the master usually requires the chancellor, in such proceedings, is charged

amount of the bid to be deposited with him with responsibility for the decrees and orders

at the time of its acceptance or immediately to be made in the case, and it is his duty to

thereafter, and on failure to do so the master make investigations, and determine as to

may reject the bid and may again expose the whether or not the sale as made by the mas

property for sale.” The record further shows ter is regular, free from fraud or wrong, and

that the only person against whom the deto the best interest of all parties concerned.

ficiency decree could operate is financially irThe master is a ministerial officer for the pur

responsible, and that the debt could only be pose of carrying into effect the decree of the

realized, if at all, by the sale of the property. court, and his acts are binding only when

While under some conditions the misapapproved by the court. If the chancellor

prehension of the master as to the bidder may finds, upon the coming in of the report of a

not make such a difference as would warrant master, that the sale as made is not to the

a chancellor in setting aside the sale, yet unbest interest of all concerned and is inequita

der the conditions as we find in this record, ble, or that any fraud or misconduct has been

the property being sold to the attorney for the practiced upon the master or the court, or any

party owning the equity of redemption when irregularities in the proceedings, it is his

he in fact thought he was selling to the party duty to set aside the sale as made and order

complainant in the decree, who had no other another sale of the premises. The chancellor

remedy for obtaining his money except under has a broad discretion in passing upon the

the sale, and only realizing $3,000 out of acts of the master and approving or disap

$8,000 worth of property on over $8,000 of proving his acts in reference to sales and en

indebtedness, the irregularities as shown wartering its own decrees (Quigley V. Brecken

ranted the chancellor in setting aside the ridge, 180 III. 627, 54 N. E. 580), and his decree

sale, and there was no abuse of the discretion will not be disturbed by this court unless it

of the court. is shown that he has abused his discretion

The judgment of the Appellate Court will and entered such an order or decree as wouid

accordingly be affirmed. not seem equitable betwee the parties inter

Judgment affirmed. ested. Surely it cannot be said that the court has abused his discretion in his actions in this case in refusing to allow appellant to

(219 111. 146) take the property in dispute, which is shown

HIGGINS et al. v. HIGGINS. to have been sold under a misapprehension of

(Supreme Court of Illinois. Dec. 20, 1905.) fact and to be worth at least $8,000, for the

1. EXECUTORS AND ADMINISTRATORS-DOWER sum of $3,000, when within 15 minutes the

— HOMESTEAD – PROCEEDINGS FOR ASSIGNmaster was offered $7,000, or $4,000 more than

MENT-PARTIES. the first bid. If appellant had wanted to A bill by a widow for assignment of homeact fairly in reference to the sale, he should

stead and dower need not make the personal

representative of the deceased husband a party. have returned to the place of sale when sent

2. DowER-CONVEYANCES BEFORE MARRIAGE for by the master and defended his actions.

IN FRAUD OF WIFE. No money was paid by appellant as pro A wife is within the protection of the vided for by the decree, and we think, under

statute against fraudulent conveyances, and a

voluntary conveyance of property, made with the conditions as here shown to exist, the

the specific intent to defraud a future wife of master was justified in offering the premises her marital rights, is void to the same extent for sale again. While it is true that mere as if it was intended to defraud future creditInadequacy of price will not always justify

ors, although the grantor has not at the time

of the conveyance selected any particular perthe setting aside of a sale, yet, where there

son as his wife, but makes the conveyance is such a misunderstanding and inadequacy with the general intention to defraud any person whom he might marry of her marital | dower in the land and prayed that the same rights.

might be assigned and set off to her. The [Ed. Note.—For cases in point, see vol. 17,

personal representative was not made a deCent. Dig. Dower, 8 15.)


ant is herself the administratrix; but the Where a conveyance to defraud a future

personal representative was not a necessary wife of the grantor of her marital rights is party, since the dower and homestead are not purely voluntary, it is not necessary that the

subject to any rights of the administrator. grantee shall participate in the fraudulent intent of the grantor in order that the convey

Counsel for appellants say that the suppleance may be set aside.

mental bill was not answered by Margaret [Ed. Note.-For cases in point, see vol. 17, Higgins, but the abstract filed by them shows Cent. Dig. Dower, $ 15; vol. 24, Cent. Dig. that the bill was answered by all the defendFraudulent Conveyances, $ 520.]

ants and that a replication to the answer 4. SAME-SUITS TO SET ASIDE CONVEYANCES,

was filed. The master reported that the deed LACHES. Where a man makes a voluntary convey

was executed and delivered prior to the marance to defraud any woman whom he might riage and prior to the acquaintance of John marry of her marital rights, the woman whom Higgins with complainant, and he recomhe actually does marry may, as soon as she learns the facts, and although her husband is

mended the dismissal of the bill. Objections still living, bring suit to set the conveyance

to the report were filed by the complainant, aside ; and if she delays too long after she has which were afterward heard as exceptions, discovered the material facts she will lose her and a decree was entered setting aside the right to relief. [Ed. Note.-For cases in point, see vol. 17,

deed as against complainant. The court found Cent. Dig. Dower, $ 15.)

by the decree that the deed was executed at 5. EQUITY-PLEADING-VARIANCE.

the time it bore date, prior to the marriage, Relief cannot be granted upon a state of but that it was executed without considerafacts disclosed by the evidence, but not alleged tion and in contemplation of marriage with in the bill, in the absence of an amendment

the complainant, and that it was executed and of the bill so as to make it conform to the facts proven.

delivered for the fraudulent purpose of de

frauding her of her marital rights. It was Appeal from Circuit Court, Livingston

ordered that homestead and dower be asCounty; G. W. Patton, Judge. Suit by Johanna Higgins against William

signed to her, and commissioners were apHiggins and others. From a decree in favor

pointed for that purpose. The defendants

appealed from the decree. of complainant, defendants appeal. Reversed.

The facts proved were in substance as folA. C. Norton and R. B. Campbell, for appel

lows: John Higgins was a widower with lants. E. A. Simmons and R. S. McIlduff,

six children and owned a farm of 80 acres for appellee.

near Pontiac, which he occupied as a homeCARTWRIGHT, C. J. The appellee, Jo

stead with his children, except his son Pathanna Higgins, was the second wife of John

rick, who lived at Flanagan, about 14 miles Higgins, and was married to him on May 17,

distant, where he kept a harness shop. On 1887. She filed her bill in this case in the

May 2, 1887, John Higgins made and acknowlcircuit court of Livingston county on March

edged the deed in question, conveying the 19, 1903, for the purpose of setting aside a

land to his children and reserving to himself deed of 80 acres of land made by her hus

a life estate. He showed the deed to the band, dated May 2, 1887, and recorded July

children who were at home and told them 23, 1887, alleging that the deed was not in

that he was going to Ireland ; that he wanted fact made and delivered until after her mar

to have things straightened up, so that in riage, and was without consideration and in

case anything should happen to him there fraud of her marital rights. John Higgins

would be nothing to worry him, and that and the grantees in the deed, with the hus

Pat could take care of the deed. Shortly bands and wives of such of the children as

afterward he went to Flanagan and gave the were married, were defendants. The hus

deed to his son Patrick, saying that he wanted band, John Higgins, was defaulted, and the

the son to take care of it and in case any. other defendants, except Margaret Higgins,

thing should happen to him it would protect a daughter, answered, alleging that the deed

the interest of the children in the property. was made, acknowledged, and delivered on

He also said that he was going east and the day it was dated, and denying that it was might go to Ireland. In fact, he contemexecuted to defraud the complainant of her plated going to New York to buy a piece of marital rights. A replication' having been land, and he did not intend to go to Ireland. filed, the cause was referred to a master in

Patrick took the deed and put it in his safe chancery to take and report the evidence and and paid no further attention to it. John his conclusions. Before the master reported Higgins went to New York and from there John Higgins died, and his death was sug went to Lowell, Mass., to visit a sister of gested, and leave was given to make his per his first wife, whom he had never seen. sonal representative a defendant. A supple- When he arrived at Lowell he found that mental bill was filed on July 15, 1905, in she lived at Chicopee Falls, Mass., and went which the death of John Higgins was alleged, there. He was introduced to complainant by and complainant claimed homestead and his sister-in-law, and within two days thereafter married her. He was near 60 years , corded. On the other hand, the fact that a old, and she was about 23 and was live life estate was reserved to the grantor would ing with her parents. He told her that he not be consistent with the theory that the owned 160 acres of land and owned personal deed was only to be effective in case of bis property and a good home. She accepted his | death by accident while on his journey. We proposal of marriage on account of his rep- think the record sustains the findings as to resentations and for the purpose of bettering the execution and delivery of the deed. The her condition. He had owned the 80 acres, but evidence justified the conclusion that, alif the deed had been made and delivered his though John Higgins had never met the comrepresentation was false even as to that. He plainant, he contemplated a second marriage only stayed at Chicopee Falls a very short time, at that time, and the deed was made with a and immediately after the marriage he and view to that event. The most reasonable excomplainant came to the farm near Pontiac.'| planation of his conduct when he went to About six months afterwards, difficulties have Chicopee Fålls is that his visit to his sistering arisen between her and the children, she in-law was in view of marriage. She introwas informed of the deed. A daughter with duced him to the complainant, whom he imwhom she had had some words had gone to , mediately solicited in marriage, with the repFlanagan, and at the suggestion of the daugh resentations already mentioned as to his propter the deed bad been put on record. The erty. The marriage took place within two complainant claimed that she had been de days, and there is no reason to suppose that it frauded of her rights and went back to Chic was a case of a sudden attachment. The opee Falls to her father and mother. The statement to the children that he was going to husband also left the farm and went to To Ireland appears to have been untrue, and the ledo, but after an absence of about 212 years explanation that he made the deed so that complainant came back at his solicitation if anything should happen to him it would and on his representations that the deed was

protect the interest of the children in the wrong and that he would bave things chan

property does not look reasonable, in view ged and do right by her. Thereafter they of the fact that the deed made precisely the lived on the farm, and it was farmed by the same disposition of the property that the law son William, one of the appellants, as a would have made if anything had happened tenant. Four children were born to the com to him. The reservation of the life estate plainant and her husband, and he seems then could only have been inserted in the deed to have realized the injustice of his arrange with the expectation that he would live to ment and wanted to make some arrangement enjoy it, and there was no occasion whatever so that his young children would not be left

for making the deed giving the property to entirely destitute. He told complainant that his children just as the law would have done, the deed was made after he was married and if it was made in view of some casualty to dated back, and promised to take some pro him on his journey. The conclusion drawn ceedings to have it set aside. He evidently

by the court is the only one that will fit with felt differently about the condition of things

all the circumstances. The conveyance was when he saw the four little children of his

voluntary and without consideration, and, if second marriage entirely unprovided for,

the intention was to defraud of her marital while the grown-up children of the first mar

rights any person whom he should marry, it riage were to take all. He consulted an at

makes no difference that he had not yet setorney with a view to having the deed set

lected the complainant as his spouse. There aside, but nothing was done, and complainant

must be a fraudulent intent, but it need not filed the bill, alleging, in accordance with his

necessarily be directed against a particular representations to her, that the deed was

person. With respect to her marital rights made after the marriage.

the law affords the same protection to a wife Appellee has assigned cross-errors on the

as to a creditor, and a voluntary disposition finding of the court that the deed was made

of property made with the specific intent to prior to the marriage. The testimony of the

defraud future creditors is void. Morrill v. grantor, John Higgins, tended to prove that | Kilner, 113 Ill. 318. An intent to defraud by the deed was made after the marriage, but

the conveyance of property may be ascertainhis recollection was very indistinct and his ed by inference from the circumstances. testimony appears quite unreliable. The evi.

Hughes v. Noyes, 171 Ill. 575, 49 . E. 703. dence proves that the deed was made and The wife is within the protection of the acknowledged on the day of its date and was statute against conveyances made with in. given to Patrick Higgins a few days after

tent to defraud, and if the conveyance is ward. There is more probability that the purely voluntary it is not necessary that the deed was only given to Patrick to hold in grantee shall participate in the intent of the case anything should happen to the grantor grantor. It is as much a fraud for a man, on his journey. Nothing was said about on the eve of his marriage, unknown to his putting it on record, and Patrick did not wife, to make a voluntary conveyance of proptreat it as he would have treated an ordi- erty to defeat the interests which she would nary conveyance, by recording it. He put it acquire in the property by virtue of her mar. in his safe and gave it no further attention riage, as it is for a debtor who contemplates until his sister came to him to have it re- contracting a debt to voluntarily dispose of


his property in order to defeat the interest of theory that the deed was executed after the future creditors. 14 Am. & Eng. Ency. of marriage and dated back prior to the marLaw (2d Ed.) 252. We cannot say that the riage for the purpose of defrauding the comcourt was wrong in the conclusions of fact plainant. It contained no allegation that it contained in the decree.

was executed on the eve of the marriage with It is further contended that the complain a fraudulent intent to defraud the future ant was barred by her own laches from ob wife. In such a case the court will permit taining relief. The circumstances were some the complainant to amend the bill so as to what peculiar. When she first learned that correspond with the proofs; but the bill was the deed had been made it does not appear not amended, and the court by the decree that she was aware of the facts which would found a different state of facts from those enable her to have it set aside or of her stated in the bill. The decree must be rerights in relation to it. When she came back versed, but, inasmuch as the reversal is not it was upon representations of her husband upon the merits, the parties will pay their that the record was wrong and he would have own costs of the appeal. it corrected and do right by her. They were The decree is reversed and the cause is in possession of the property, and she was remanded, with leave to the appellee to apparently resting in the belief that he would amend her bill to correspond with the proofs, in some way fulfill his promises to her. and if such amendment is made the circuit When she obtained any further information court is directed to re-enter the decree herefrom her husband it was to the effect that tofore entered, and the parties will pay their the deed had been executed after the mar own costs in this court. riage, and as she did not join in it it would Reversed and remanded. be no bar to her right of dower or homestead if she should outlive her husband. Whenever she learned the facts in the case she had a

(219 III. 40) right to institute a suit at once to set aside

OLSEN, County Clerk, v. PEOPLE ex rel. the conveyance as being in fraud of her

BUENGER et al. marital rights. Although a wife cannot as- (Supreme Court of Illinois. Dec. 20, 1905.) sert an inchoate right of dower in the life 1. STATUTES-AMENDMENTS-TITLE OF AMENDtime of her husband and is not guilty of

ED ACT. laches in failing to do so, she may set aside

Laws 1905, p. 194, providing that a per

son who has been formerly married and has a deed executed in fraud of her marital been granted a divorce on the ground of exrights. Freeman v. Hartman, 45 Ill. 57, 92 treme cruelty, or desertion and abandonment on Am. Dec. 193; Lohmeyer v. Durbin, 213 Ill.

the part of his or her spouse, shall not marry

again within one year from the time the decree 498, 72 N. E. 1118. She might therefore lose

of divorce has been granted, is not, because her right to relief by long delay in bringing it is an amendment of Act July 1, 1874 (Hurd's suit after she knew the material facts, but | Rev. St. 1903, C. 89), entitled "An act to re we cannot say in this case that she was

vise the law in relation to divorce," subject to

the objection of not being within the title of barred by laches.

the act which it purports to amend. The tenant, William Higgins, built a house 2. DIVORCE-EFFECT OF DECBEE-REMARRIAGE for himself on the premises, but that was not OF DIVORCED PERSONS-STATUTOBY PROVI, to be taken into account in the assignment


Laws 1905, p. 194, providing that a person of dower. Patrick sold his interest to Wil

who has been formerly married and has been liam, and William loaned $500 to one of his granted a divorce on the ground that his or sisters and took a mortgage on her interest her spouse has been guilty of extreme cruelty, in the property to secure the loan. These

or desertion and abandonment, shall not marry

again within one year from the time the de. transactions were between the grantees in

cree for divorce was granted, and Laws 1905, the deed, and as William lived on the place it p. 317, amending Hurd's Rev. St. 1903, c. 89. is a fair inference that he knew of the claims

prohibiting the county clerk, under penalties made by the complainant and his father with

therein specified, from issuing a license for

the marriage of a person who is legally inrespect to the deed. So far as the mortgage capable of contracting marriage, are not subis concerned, there is nothing to show that the ject to any constitutional objection. interest of the mortgagor will not be suffi 3. SAME.

Such acts apply to all persons coming cient to secure the debt after homestead and

within their terms, although they were divorced dower shall be assigned.

before the act took effect. The decree, however, must be reversed, for 4. MARRIAGE-ISSUANCE OF LICENSE-DUTIES the reason that the bill does not contain al | OF CLERK-INQUIRIES legations of the facts upon which the relief

Laws 1905, p. 317, amending Hurd's Rev.

St. 1903, c. 89, prohibits the county clerk, was granted. It is a primary rule, always under penalties therein specified, from issuing enforced and sustained by numberless decis a license for the marriage of a person legally sions, that the allegations of the bill, the incapable of contracting a marriage. Laws proof, and the decree must correspond; that

1905, p. 317, prohibits in certain cases the re

marriage of divorced persons within one year facts disclosed by the evidence which would

from the granting of the decree of divorce. warrant relief will not sustain a decree Held. that it is the duty of the county cler where the facts are not alleged in the bill.

in issuing a marriage license to make inquiries, Dorn v. Geuder, 171 Ill. 362, 49 N. E. 492.

so as to find out whether the applicants for

the license are incompetent to marry under The bill in this case was framed upon the the divorce act.

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