Winchell v. Edwards

Mr. Justice McAllister delivered the opinion of the Court: The foreclosure of the mortgage by scire fiadas, in the name of Slocum, the mortgagee, for the use of Winchell, was legal and proper. Camp v. Small, 44 Ill. 37. The judgment was, therefore, valid and conclusive, not only upon the parties, but also upon all persons in privity with them. Such privity is of three kinds—by blood, in law, and by estate. Appellees being heirs at law of John M. Edwards, one of the defendants in that judgment, they are privies, and concluded by it. The execution issued upon the judgment was in due form and valid. In both the judgment and execution the premises were properly described. The irregularity of selling en masse instead of by parcels, is one which might have given the defendants in the execution the right to have the sale set aside, if they had taken any steps to do so. So with other irregularities of that character. But the right is one which may be lost by laches. Walker v. Schum, 42 Ill. 462; Fergus v. Woodworth, 44 Ill. 377. James M. Edwards, the father of appellees, was present at the sale, and there is sufficient evidence that he was cognizant of the judgment, the sale and the manner of conducting it, and from the fact of such knowledge, and the fact of his taking no steps to question the propriety of the sale, from the time it was made until upwards of a year after the time of redemption had expired, and then leaving for California, as may be inferred, with the expectation of surrendering possession to Winchell, who had already leased his part to Doolittle, raises such a presumption of acquiescence on his part as would have precluded him from setting it aside. If he was thus precluded, as a matter of course, the appellees, his heirs at law, are in no better situation. The description of the premises ordered to be sold by the judgment and in the execution, was “Lot No. two (2), in block No. fifty-one (51), in the School Section Addition to Chicago.” The lot was levied upon as thus described. It is the same in the sheriff’s deed, with these words thrown in: “Except fifty-nine feet on Adams street.” That exception was made, no doubt, on account of the fifty-nine feet off the west end sold to McGraw, of which he was then in the -occupation. Conceding the exception to be uncertain, and for that reason void, still that is no ground for setting aside the sale in this case. It is a matter by which McGraw or his grantee alone could be affected. The other aspect of this case, as presented by the bill, is, in substance, that Winchell advanced the money to Slocum upon the mortgage, for and as a loan to John M. and Edwin Edwards, under an agreement with them that he was to do so, take the assignment of the mortgage to him absolutely, foreclose it and bid in the premises, take the title and hold it as a security for the amount advanced; that when they, or either of them paid him, then he was to deed over to each his share of the property in severalty; that before this, John M. had become the owner, in severalty, of the south thirty-three feet. That in pursuance of this arrangement they did not redeem from the sheriff’s sale, but that on or about the 1st of December, 1851, John M. paid Winchell one hundred and fifty dollars in full of the amount due him under said mortgage to Slocum, for that part of the premises which had been conveyed to said J. M. Edwards in severalty, and on that occasion Winchell gave him the receipt set out in the bill; that after giving the receipt, Winchell merely held said piece of land in trust for J. M. EdAvards, and those claiming under him. We have examined the evidence under this branch of the case, with all the care demanded by the peculiar duties which the laAV imposes upon the court of chancery with reference to the i’ights and interests of infants, and are clearly of opinion that it ■ does not sustain the bill. Edwin Edwards and Francis Edwards, brothers of the late John M. Edwards, were introduced as witnesses to prove the agreement between Winchell, John M. and Edwin íkhvards. The latter testified that the agreement Avas, that Winchell should re-convey the property to their wives. Francis testified that Winchell was to hold the property until he could make the most out of it, for the benefit of witnesses’ brothers, John, Edwin and himself and their families. Edwin and John M. were both in embarrassed circumstances at the time, the former having a judgment against him of upwards of $3000. Edwin had given, in 1863, a statement under oath that Winchell held the property for the benefit of the creditors of John M. Edwards, of whom Francis Edwards was preferred. Charles M. Edwards, another brother, is introduced, and he testified that he had been the custodian of the alleged receipt for the one hundred and fifty dollars, claimed to have been paid by John M. Edwards to Winchell on the 1st of December, 1851; that John M. gave it to him to keep, just before the former started for California. This receipt, purporting to have been given by Winchell, was not only proved to have been a forgery, but the counsel for appellees admits that its execution was not proven, and that it probably was not executed by Winchell. These brothers all appear to have testified under feelings of bitter hostility to Winchell, who is their brother-in-law. They were examined, on the part of appellees, generally in a very unfair manner, by leading questions suggesting the very answers desired, and upon vital parts of the case. They were called upon to give their conclusions from conversations which they evidently had never heard, or had forgotten, and in many instances to state what they had heard from third persons. To unsettle titles upon such evidence would be extremely dangerous. And while we acquit the appellees of any participation in what we deem, under all the evidence, to be a most foul conspiracy against one of the appellants, yet, from what we can see as to the active management of this case, the fabrication of evidence of the payment of the one hundred and fifty dollars alleged to have been paid by John M. Edwards, when all the circumstances tend to disprove the fact of such payment, raises a strong presumption against those who appear to be real parties to the suit, which must affect the case of the appellees, however innocent they may be. “ When a person is proved to have suppressed any species of evidence, or to have defaced or destroyed any written instrument, a presumption will arise, that if the truth had appeared it would have been against his interest, and that his conduct is attributable to his knowledge of the circumstances. The general rule is, “ omnia presumunter contra spoliatorum.” “ The fabrication of evidence is calculated to raise a presumption against the party who has recourse to such practice, not less than when evidence has been suppressed or withheld.” 1 Phil. Ev. (4th Am. ed.) 639. We are fully satisfied that Doolittle was- a bona fide purchaser without notice. Indeed, he seems to have purchased upon the advice and recommendation of both John M. and Edwin Edwards that WinchelPs title was good. It is unnecessary to cite authorities to the effect, that if a party assist in making a sale of real estate, the legal title to which is in another, by recommending the title of the latter to be good, and thus induce the purchase, such party will not be permitted afterwards to set up a secret equitable title in himself, against such purchaser thus induced to buy and pay for the property. The evidence shows that Winchell took possession of the premises under claim and color of title, before the death of John M. Edwards, and that he, and Doolittle, who holds under the same title, have paid all taxes upon the property, from and including the year 1851 to the time of filing this bill in 1867. It is true, the answer is not so framed as to properly set up this defense, and we lay no stress upon it. The court below should have dismissed the bill on the ground that it was not sustained by the evidence.. Its decree is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Decree reversed.