Burns v. Middleton

Mr. Justice Sheldon delivered the opinion of the Court: On March 18, 1870, John Burns executed his promissory note to Thomas Middleton, for $5950, payable six months after date, with twelve and a half per cent per annum interest, if not paid at maturity, to secure the payment of which, Bridget Burns, the wife of said John, executed to Charles P. Wise, as trustee, her deed of trust of certain real estate in the city of Alton. On September 20, 1873, Wise, the trustee, sold the property under the trust deed, for $5500, Middleton, the beneficiary, becoming the purchaser. About two and one-half years after said sale Bridget Burns filed her bill in chancery in this ease to set aside the sale, and for an accounting, the bill in substance alleging that the sum of $357.95 was included in said note fraudulently, and without any consideration ; that June 2, 1873, Middleton demanded payment of the note, and thereupon complainant made arrangement to sell a portion of the property embraced in the deed of trust for $5000; that the amount at that time due Middleton on the note did not exceed that sum, and that complainant then offered her check for -that amount to Middleton, which he fraudulently refused to accept, in order that he might obtain the property at much less than its value; that under authority from complainant, Middleton had received the rents of the premises, and that they amounted to enough to pay the note; that he fraudulently suffered the property to remain unoccupied, to complainant’s loss • of $1500, and that the property at the time of the sale was worth $9000. The circuit court, on final hearing, dismissed the bill, and complainant appealed. The note in question, of March 18, 1870, was given in part in renewal of a previous one, and the proofs taken in the case have gone into antecedent transactions of the parties in the making of notes and deeds of trust, commencing in October, 1867, as tending to show what was the amount due from Burns on March 18, 1870. But this is irrelevant under the pleadings, and we shall give no consideration to such prior transactions. The bill alleges that on March 18, 1870, John Burns was indebted to Middleton in the sum of $5562.05, and that to evidence the same the latter took a new note, and that $357.95 was added to such sum, and included in the note fraudulently, and without any consideration. The then indebtedness is admitted by the bill to be $5562.05, and it can not be gainsaid. The only objection the bill makes to the note in question, as originally given, is the inclusion in it of the added sum of $357.95. The evidence fails to sustain the allegation of the bill in regard to this item, but on the contrary, it satisfactorily.shows that there was an additional advance made of this sum at the time of the giving of the note. All that appears as to the offer and refusal of a check for $5000, which is complained of in the bill, is, that the proposition was made to Middleton that he should accept that, and release a portion of the property,- which the latter refused to do, not deeming the remaining portion sufficient security for the residue of his debt. That there was no more than $5000-then due on the note, appears only from the testimony of complainant and her husband, which is fully contradicted by that of Middleton and Wise. Some insurance money and rents were received by Middleton, but these were accounted for and credited on the note, as Middleton testifies, and Wise testifies to the admission of Burns, at the time the property was first advertised to be sold, in June, 1873, that the amount which Middleton claimed to be due upon the note was correct. The only evidence to the contrary is that of Mrs. Burns and her husband. The testimony of Middleton and Wise is corroborated by documentary evidence in the case. It appears that Middleton and Mrs. Bums had a settlement on October 24, 1872, after which she took the vouchers for payments and statements of receipts home with her, promising to send a receipt in return for them. , This she did, sending to Middleton by mail a paper acknowledging that “all money due us (the Burns’) as rent from our real estate in the city of Alton, to the 24th of October, 1872, except §50, which is to be applied on our note to him, ” has been received, and further reciting: “This is given as a receipt in full of all claims, demands or sums of money which we had against the said Middleton prior to the 24th day of October, 1872.” This should be taken as an adjustment of all counter claims of the Bums’ up to that time. Since then Middleton renders a detailed statement of all receipts of rent and disbursements, and of the application of the balance upon the note, which is not controverted, except in the respect of there being no allowance of interest on rents received. Any proper claim on this account will go in reduction of the unpaid balance of the note, which is largely in excess of any such claim of interest on rents. It is no ground for setting aside the sale, nor does the inadequacy of the price at which the property was sold afford such ground. The evidence fails to show that Middleton had the renting of the premises, so as to make him chargeable for any loss of rent because of the property not being rented. It shows that the rents were collected by Middleton, and that the renting of the premises was by Bums. Not finding there to be any preponderance of evidence in support of the allegations of the bill, we think the decree, of the circuit court dismissing the bill was correct, and the decree will be affirmed. Decree affirmed.