McKennan v. Mickelberry

Mr. Justice Scott delivered the opinion of the court: We have been relieved of the necessity of examining the amended bill by statements contained in the brief and argument of plaintiffs in error to the effect that it contained “no new material allegations whatever,” that no material matters contained in the original bill were omitted from the amended bill, and that “the allegations of the two bills are substantially the same, although the language may differ somewhat.” If the amended bill contained no material allegations except those found in the original bill and if it omitted no averments of substantial import contained in the original bill, it is manifest that no injury resulted to the plaintiffs in error from the action of the court in striking it from the files. The record does not show what amendment, if any, the plaintiffs in error desired to make, other than such as were offered by the amended bill which was stricken. It does not appear, therefore, that the court erred in vacating the order granting leave to amend. Defendants in error state that the bill was demurrable because it shows that the contract of division was to have been in writing and that Mickelberry was not able to make the conveyance of the personal property to the trustee as long as the contract of division had not been reduced to writing, and that to have made the conveyance to the trustee under such circumstances would have been to lay himself open to endless litigation and danger of loss. The same position was taken by Mickelberry in his letter of May 29, and his statement in that regard is plainly a mere subterfuge, as he had already made the conveyance to the trustee and deposited the document with the bank. When he desired to execute the bill of sale, the fact that the contract of division was not in writing occasioned no difficulty. When he wished, apparently, to avoid his contract that fact was seized upon as an excuse. The contract of May 9 does not recite or require that the contract of division was, or was to be, a written contract. The contract of May 9 refers to the contract of division as “of even date herewith,” and the bill avers that the latter contract had been made by McKennan and Ziemens on May 9, prior to the making of the contract which we refer to as that of May 9. It was not necessary that the contract of division should be in writing in order that it should be of even date with the contract of May 9. Mickelberry’s obligation was to convey “to Lawson D. Welch, as trustee, for the said Frank B. McKennan’s use, as provided in a certain contract between the said Frank B. McKennan and the said John Ziemens of even date herewith,”—that is, of the date of May 9, 1906,—and his obligation in that respect would have been entirely satisfied by a conveyance to Welch, as trustee, for McKennan’s use, “as provided in a certain contract between the said Frank B. McKennan and the said John Ziemens, of the date of May 9, 1906.” Any controversy about the terms of the contract of division would have been between McKennan and Ziemens and would not have concerned Mickelberry. It is contended that the bill- does not show that the complainant McKennan complied with his part of the contract by tendering to Mickelberry an abstract of title in accordance with the terms of the contract of May 9, in that the abstract as furnished showed the existence of the liens (other than the trust deeds) amounting substantially to the sum of $5200. The bill avers that those liens were satisfied two weeks prior to the time when McKennan demanded the delivery of the title papers, and that Mickelberry, through his attorney, Will, had knowledge of that fact. Inasmuch as Mickelberry was party to the transaction by which the abstracts were taken from the bank and wrongfully retained, we think the fact that the abstract was not made to show a satisfaction of those liens is a matter of no moment, in view of the further fact that Will, attorney for Mickelberry, knew they had been satisfied. It is also suggested that these liens were not satisfied with money furnished by the bank, in accordance with the original arrangement. This, also, is without merit. If the liens were removed it made no difference to Mickelberry by whom the money was paid. It is also urged that there was no compliance with the contract by McKennan and Ziemens, for the reason that after the contract was made, and before McKennan demanded the exchange of the conveyances, the trust deed to Will had been filed of record. It is entirely evident, if the averments of this bill be true, that this as well as all other obstacles in the way of specifically enforcing this contract, aside from that presented by the rights of the judgment creditors, arise from collusive and fraudulent conduct of Mickelberry, Ziemens and Will, the attorney for Mickelberry, designed to make impossible a specific performance of the undertakings of the parties. A court of equity will not thus permit Mickelberry and Ziemens, by their own acts or by the acts of Will, to which they consented, to defeat the right of McKennan to have the contract carried out as made. To do so would be to allow them to take advantage of their own wrong. So far as the judgment creditors are concerned, had Mickelberry and Ziemens acted with reasonable diligence and in good faith, the trade would, we think, have been consummated before the date when the first lien attached. Any security afforded these creditors by the Iroquois lands was obtained by them with constructive notice of the existence of the contract of May 9 and of McKennan’s rights arising thereunder. If the facts be as alleged by the bill, the trust deed to Will should be canceled and removed of record and a specific performance of the contract should be decreed; the Iroquois lands should be discharged from any burden or lien in favor of the judgment creditors, and those creditors should be given such right in the property to be transferred to Ziemens and McKennan as will give to the judgment creditors as great security for the payment of their judgments as they now have by virtue of such steps as they have taken to subject the Iroquois lands to the payment of the judgment indebtedness due them; the rights of the judgment creditors should be made to attach to the proceeds of the exchange of the Iroquois lands instead of to the equities of Ziemens and McKennan in those lands, (1 Black on Judgments, sec. 438.) For the purpose of effectually protecting the interests of the various parties to this litigation, the court may, in addition to decreeing specific performance, appoint a receiver for the property which is to be transferred to Ziemens and McKennan and may direct the sale of any or all of that property. Mickelberry should be required to account in accordance with the prayer of the bill. If Mickelberry shall be compelled to comply with his contract and to account, the court will have ample power to enforce the rights of all the parties to this controversy by directing disposition or administration of the DeWitt county properties and distribution of the proceeds of the accounting, and should retain jurisdiction for the purpose of doing complete justice between the parties. Robinson v. Appleton, 124 Ill. 276. The decree of the circuit court will be reversed and the cause will be remanded, with directions to overrule the demurrer to the bill. Reversed and remanded, with directions.