Hilgerson v. Hicks

Mr. Justice Hand delivered the opinion of the court: The. contention of appellant is, as we understand it, that she has an interest in the premises to the extent of the value of the services rendered and the amount of money expended by her in caring for and maintaining William Johnson during his last illness, and the passage money of Lena Johnson on her return home, and for the board of Lena and Inga Johnson subsequent to the death of William Johnson. The appellant made, or could have made, that contention in the suit to "set aside the deed from William Johnson to her and her brother. She was also a party defendant in the probate court to the application for an order to sell the real estate to pay debts,' wherein the real estate was held to have been the property of William Johnson and subject to sale to pay his debts, and is bound by those adjudications'. It is also said that the appellee Hicks purchased the real estate at the administratrix’s sale for the administratrix, and now holds the same in trust for her. The evidence does not sustain such contention, and if it did it would avail the appellant nothing, as this is a suit to enforce a specific performance of an agreement of sale between the appellant and the appellee Hicks, and not to enforce a trust in favor of Lena Johnson, as against said Hicks. The only other questions in this case are questions of fact, and the one mainly controverted is whether or not the appellant purchased said premises subject to unpaid taxes and tax sales. The master and chancellor held she did, and from a careful examination of the evidence we are of the opinion such holdings are correct. The appellee Hicks purchased the premises at the administratrix’s sale, relying upon the statement of the attorney for the administratrix that the title was good with the exception of the taxes, which had remained unpaid for somp time. The appellant had held the title, in part, for a time, knew it had been in litigation, and that it had finally been held to belong to Inga Johnson, a minor. After the litigation was terminated she remained in possession and received the rents, and we think the presumption that she knew the taxes had not been paid, and amounted to a considerable sum, a reasonable one. At the time she agreed to purchase the premises the appellee Hicks informed her that he had paid therefor $575 and agreed to sell the same to her for $650, and he testified he told her she would have to pay up the back taxes. His statement as to the payment of taxes is denied by the appellant and her daughter, but the evidence shows that she immediately went to the attorney for the administratrix, who had represented her in the litigation over the deed made by William Johnson, and informed him that she had bought the appellee Hicks out, and he testified that they talked about the amount of the back taxes, and that he informed her where she could find Glos, who controlled the tax titles, and that she went to his office for the purpose of seeing him about getting the same released. The only-payments made upon the agreement of sale by the appellant were $50 paid April 29, 1892, to the appellee Hicks, and $100 paid'May 29, 1893, to Runyan & Runyan, who at that time represented Hicks. At the time the last payment was made the appellant accepted the following receipt therefor: “Chicago, IIIMay 29, 1893. “Received of Elisa Hilgeson the sum of one hundred dollars, to be applied upon the purchase money of the William Johnson property if sale is consummated, otherwise to be refunded to her, less fees and expenses incurred in clearing the title for her in that behalf. Runtan & Runyan.” The appellant testified she could not read the receipt, but her grown daughter, who could read' writing, was with her at the time she paid the money, and the receipt was delivered to her. Mr. Runyan testified he paid §45 for the continuation of the abstract, and that the balance of the $100 was still in his hands. A claim was made that the appellant paid Runyan & Runyan three payments, aggregating the sum of §50, to apply on the purchase. She produced the receipts of Runyan & Runyan for that amount, which state that the several amounts were received to apply on account, and Mr. Runyan testified the several amounts had been paid to the firm of Runyan & Runyan as fees for services in the suit over the William Johnson deed, and it appears that Runyan & Runyan did not represent the appellee Hicks until about the time the $100 payment was made. We are unable to determine from this record the amount the appellant expended for improvements upon the premises or the amount she received as rent therefor. It is clear, however, that the rent collected by the appellant not only equaled, but exceeded by far, the amount she paid to the appellee Hicks, Runyan & Runyan, and for improvements, so that in the way of rents she has been more than re-imbursed for all the amounts that she has expended. The evidence shows that the appellee Hicks endeavored to induce the appellant to pay him the balance due him on the agreement of sale and complete the purchase, which she declined to do, and that during the year 1893 he tendered her a quit-claim deed, and upon her refusal to accept the same and complete the purchase he forfeited the agreement of sale. The appellee Hicks has bought in the tax titles based upon the back taxes, and paid all taxes which have accrued upon said premises since 1892, which amount to a considerable sum. We see nothing inequitable in the decree of the circuit court.' It will therefore be affirmed. Decree affirmed.