McDearmon v. Burnham , 158 Ill. 55 ( 1895 )

Mr. Justice Phillips

delivered the opinion of the court:

It is clear from this record that about 1872 Blake had the title to the Skokie lot in question, as trustee for Samuel H. McDearmon, and it is also apparent that Dyer N. Burnham had knowledge of the fact that McDearmon had an interest of some character in the land. One of the questions suggested, therefore, is, whether or not, under the settlements and conveyances of August 2,1876, and August 5, 1879, Burnham became seized of the title to this 160 acres in trust for McDearmon, and the latter had the right of redemption.

The original loan of $4000 procured by these parties was, according to the evidence, about as much as this land was worth. McDearmon says that when he wanted title transferred he simply directed Blake to make deeds. By this arrangement Ward and Eddy obtained absolute title to the 140 acres, and Burnham invested additional money by the purchase of three of their purchase-money notes. At the time of the foreclosure of the Ward and Eddy trust deeds, Burnham held all the notes belonging thereto. At this sale he had the same right, if he was in any way dissatisfied with his securities, to become an absolute purchaser and acquire title to this 140 acres, as he would have to foreclose his own trust deed in case of default and become a purchaser. The consideration paid was adequate, as Burnham’s indebtedness at the time was nearly $10,000, and the preponderance of the evidence is that the" land was only, worth from $25 to $30 per acre. Under the Barber foreclosure, therefore, Burnham became the purchaser and received a trustee’s deed from Barber. By this conveyance, which was a sale of the equity of redemption of Ward and Eddy only, Burnham became seized in fee óf the title to 140 acres of the Skokie lot.

It is urged that in buying Burnham was acting for McDearmon, and agreed that he would buy it in for McDearmon’s benefit. The latter says that this verbal statement was made by Burnham at the time and place of the Barber sale, in the presence of himself and Blake. Blake does not testify to it, and Burnham denies it. Irrespective of that, however, the plea of the Statute of Frauds is interposed to the cross-petition. It is not alleged that such promise or agreement was evidenced by any memorandum in writing. The Statute of Frauds was therefore a bar to any relief as to the 140 acres. (Lawson v. Lawson, 117 Ill. 98; Rogers v. Simmons, 55 id. 76; Lantry v. Lantry, 51 id. 458; Hovey v. Holcomb, 11 id. 660.) Burnham therefore took title, under the Barber conveyance, to the 140 acres, free and clear of any equitable claim on the part of McDearmon.

On the same day as the Barber sale, Blake and wife conveyed the remaining 20 acres to Burnham, and it is alleged by McDearmon that it was done secretly, and without his knowledge or consent. There is nothing in this record that casts any suspicion on the good faith, honesty and integrity of Blake during these transactions. On the day the deed to this 20 acres was executed by Blake, McDearmon had come down from Michigan, and was stopping as a guest at Blake’s house. Burnham had presented a statement, showing the amount of the indebtedness to be in excess of the value of the land. If Blake had desired to keep secret from his friend, McDearmon, the fact that he and his wife were conveying away this 20 acres, he would hardly have selected this particular day to execute it. The only reasonable presumption to be deduced from the facts and circumstances is, that in making the settlement with Burnham, Blake executed this deed under the verbal direction of McDearmon, as he had, on occasions before, executed the Ward and Eddy deeds. Burnham, however, after acquiring title, reconveyed the Skokie 160 acres back to Blake, and gave every opportunity for payment, as he accepted Blake’s notes and trust deed for $6000, due in three years, and the payment of that amount would have left the Skokie lot free and clear of incumbrance. In 1879 Blake was involved to such an extent that he could not meet his obligations. By an agreement, which Blake says was satisfactory to him, his indebtedness to Burnham was parceled out on the respective properties, and he executed to Burnham warranty deeds, first, to the Cottage property, and later to the Semple and Skokie properties, on which latter tract Burnham still held the trust deed for $6000 and accumulated interest. The record shows that the consideration thus paid was adequate, and was about what the properties were actually worth at that time. Burn-ham took possession under his deeds, and exercised control of the property. During the period of time from 1876 no interest was paid by McDearmon, and no payments on account of his principal indebtedness. No taxes were paid by him, and no accounting, at any time," was demanded or requested of Burnham. While he alleged that Burnham told him he might have the right of redemption at any time—even in fifty years—if he paid the interest, such is highly improbable, from the fact that Burnham already had about as much money invested in the property as it was worth. But even' if it be conceded that McDearmon had the right of redemption in the Skokie lot, he slept on his rights for a period of about fourteen years—from 1876 to 1890. He permitted interest and taxes to accumulate in large amounts on property the rental value of which is shown to have been only slightly in excess of $100 per year. He took no steps to assert his rights during these years, although he had no written evidence, and nothing but a verbal agreement within the knowledge of witnesses who, like himself, had passed their three score and ten years. In Shovers v. Warrick, 152 Ill. 355, this court said (p. 360): “After a long period has elapsed, courts of equity will be cautious in enforcing the specific performance of a contract when there is any real doubt about its existence and terms.”

. When a court of equity is asked to lend its aid in the enforcement of a demand that has become stale, there must be some cogent and weighty reasons presented why it has been permitted to become so. Good faith, conscience and reasonable diligence of the party seeking its relief are the elements that call a court of equity into activity. In the absence of these elements the court remains passive, and declines to extend its relief or aid. It has always been the policy to discountenance laches and neglect. Carpenter v. Carpenter, 70 Ill. 457; Beach v. Shaw, 57 id. 17; Owen v. Peacock, 38 id. 33; Blackford v. Wade, 17 Ves. 87; Smith v. Clay, 3 Brown’s Ch. 644; Pratt v. Vallier, 9 Pet. 416; Prevert v. Graty, 6 Wheat. 481; Browman v. Nathan, 1 How. 194.

The general rule on this question is expressed in the foregoing and a long line of other cases. This rule, when applied to the particular facts of this case, shows such laches and neglect on the part of the cross-petitioner as would bar any right of action and cause a court of equity to refuse him any relief, even though the right of redemption in this land had at one time existed. If cross-petitioner had any equitable rights after the transfers of 1876 and 1879, he suffered his demand to become stale, and no sufficient reasons are presented to this court why it has so become.

The Cottage and Semple properties were the individual properties of Blake. They were conveyed, in 1879, to Dyer N. Burnham by Blake, in settlement of indebtedness then owing by Blake to Burnham. The consideration was adequate, and Blake had no right of redemption. McDearmon took a deed from Blake in 1890, but acquired no title. A consideration of these two transactions is ' not material to the discussion of the Skokie tract.

We find no error in the admission of improper or the rejection of proper evidence by the trial court.

It was not error for the circuit court to confirm the master’s report and enter the decree dismissing the cross-petition and amended cross-petition, and establishing and confirming the title, in fee simple, in this 160 acres of land in Dyer N. Burnham.

In the absence of any error in the record the decree of the circuit court of Cook county is affirmed.

Decree affirmed.