Goldsborough v. Darst , 9 Ill. App. 205 ( 1881 )

Lacey, J.

It is contended by counsel for appellees, that Darst, under the circumstances, would not be bound in ease appellant paid the whole of the said decree, to repay appellant any portion of it, for the reason that it was on account of the fraud of Darst and Horn that the decree was rendered against them, and therefore in such case there could be no contribution.

It is contended that Darst and Horn, the man under whom appellant claims title to the lot in controversy, were “ tort feasors,” and that between such persons there can be no contribution compelled either in a court of law or equity. In certain cases of torts and trespasses, it is certain that courts will not interfere to equalize burthens, but there are so many exceptions to the rule that it has ceased to be a general one. Bailey v. Bussing, 28 Conn. 455.

In this case it appears that the fraud consisted in procuring the proceeds of the* sale of the east half of lot three, as set forth, belonging to Owen Thomas, less one-tenth, amounting to $1,755, which was purchased at the trustee’s sale, to be applied on the mortgage debt, under which the sale was made, instead of being paid to Thomas, the owner. Lot Ho. 12, and the west half of lot 3. the equity of redemption of which belonged to Darst and Horn, should have first been sold and applied in discharge of the mortgage, and they were of ample value to have paid it off. After applying the proceeds of Thomas’ lot to the discharge of the mortgage debt, Darst and Horn paid off the balance of the trust deed, and became the owners of lot 12, and west lot 3, as well by their purchase of the east-|- lot 3. They had acquired title to property amply sufficient to pay off the mortgage, as well as to pay Thomas the value of his lot, which they ha‘d bid in at the sale; but by their wrongful acts Thomas had not received anything. The court, by its decree, compelled them to pay Thomas for his lot, and refused to allow them to apply the purchase price of it as they desired, to the discharge of the trust deed. The basis of the decree was the exact price of the lot and interest which the court held, equitably they should pay him. The wrong consisted in an attempt to get Thomas’lot unjustly, which did not succeed. It is not like a case of trespass or assault or negligence, the result of which is an injury, and the grounds of recovery. We think the fraud practiced by Darst and Horn in acquiring this lot, is not of such a character that courts would refuse either to partition the lot between the parties in case application were made for that purpose, or to compel contribution in case one of the purchasers paid the whole price. If Darst and Horn each have one-half the lot acquired from Thomas’ equity requires that each should pay one-half the price of it. The fraud was collateral to the consideration for which the decree was rendered, that being for the price of the Thomas lot.

We do not think that the conduct of Darst and Horn in acquiring this lot, considered, presents a case in which a court would refuse to compel contribution of the purchase money.

It is claimed by Darst that he was liable in equity, between himself, appellant and Rebecca Goldsbórough, to pay only one-tliird of the decree. This much he acknowledged by paying it. He bases his claim upon the fact that there were three respondents to the decree which was against all jointly. Therefore each should pay an equal share as between themselves. We can see no force in this argument.

Horn and Darst were the original parties in the suit of Thomas. They had purchased, on joint account, a lot belonging to him, for which they were held liable to pay the latter, but Horn died during the pendency of the suit, and having devised his estate to appellant and Rebecca Goldsborough, they became parties to the decree and responsible to pay the amount that Horn should have paid — one-half. By his death the estate did not become liable to pay more than he was in life. Clearly, then, Darst, as between himself appellant and Rebecca Goldsborough, was bound to pay one-half. The evidence shows that prior to the issuing of the execution on which the sale in question took place, the appellant and Rebecca Goldsborough had paid one-half of the decree and costs. After the execution was in the hands of the sheriff and before the sale, Darst paid one-third of the decree and costs, thus recognizing the debt as one in which he ought to. make contribution, only disputing the proportion that he should pay.

After the sheriff received the execution he demanded the payment from Darst, who refused to pay the remaining one-sixth, claiming that appellant should pay it. He then procured the sheriff to levy on the lot of appellant, who would not have done so except for the interference and promises of Darst.

The latter promised to furnish a bidder when the sale took place. Appellee Casey bid in the lot at the sale for the balance due on the decree and costs.

It becomes necessary to inquire whether Casey purchased in the interest and as the agent of Darst, it being claimed on the part of appellant that Casey was the mere agent of Darst, and by appellees that Casey purchased in his own interest. We do not deem it necessary to go into a general examination of all the facts, but we are satistied, from the evidence, that Casey’s purchase was in the interest of Darst, or at least he purchased at the sale for the purpose of assisting Darst to compel appellant to pay two-thirds of the decree, and releasing the former from paying more than one-third.

It appears that Darst furnished the money to Casey to make the purchase, who was his son-in-law, constant adviser in legal matters, and knew of the wrongful and illegal purpose of his father-in-law, in trying to compel appellant to pay an unjust proportion of the debt. He knew this by notice given by counsel for appellant, before the sale as well as from his own knowledge derived from his conversations with Darst, and his general familiarity with his business. ' It is true that appellees both claim that the money advanced by Darst was as a loan, but from all the facts and circumstances of the case as well as the account which they both gave of the transaction, we are compelled to the conclusion that Casey was acting in the interest of Darst, and not for himself.

- The entire transaction bears the impress of collusion between the appellees to carry out the scheme of Darst to make wrongful use of the process of the court to sell appellant’s property to pay a debt, which in equity and good conscience the ■former alone should pay.

The money furnished by Darst and applied by Casey, his agent, to the purchase of appellant’s lot, was paid over to the sheriff, who satisfied the decree of Thomas in full.

Thomas has no further interest in the matter; he has been paid.e Darst has only paid what he ought to have paid, and instead of being allowed to hold the certificate of purchase as a cloud upon the title, he should be held to have paid his own debt and be compelled to surrender the certificate. . He ought not to be allowed to avail himself of the fraud by which he brought about the sale.

Such an illegal use made of the process of the court ought not to be tolerated. If there could be no contribution enforced against Darst, as Casey claims in his answer, though Darst does not, the success of such a fraud as this would be more galling and vexatious because there would be no remedv. Had the sheriff been left free to act without the interference of Darst, he would have collected the balance of the execution of the latter. Should he by his wrongful intermeddling gain such an advantage as this ?

It is true, as appears from the evidence, that the lot of appellant which was sold, came to him by virtue of a foreclosure of a mortgage or trust deed which he received as the legatee of Horn. The decree only authorized execution against the personal property of Horn in the hands of appellant, and not against his real estate. At law the levy on the appellant’s real estate would be in excess of the decree and void. It is true that Thomas might follow, by proceedings in equity, the personal estate invested in the lot, and obtain satisfaction of the decree out of the lot, but he has not attempted this, and Darst by bidding at the sale has paid the money to Thomas. If the former should now claim that the sale should not be set aside on the ground of being void at law except on equitable terms to be enforced against appellant, such as the payment of the bid, we must hold that he has no such claim to the equitable interference of the court, because the debt was his own, and he slion d have paid ■

We are of the opinion, therefore, that the exceptions to the master’s report should have been overruled, and a decree making the injunction perpetual, and removing the certificate as a cloud upon appellant’s title, and declaring the bid of Casey and payment of the money, as a full satisfaction of the decree, and generally the relief as prayed for in the bill. For the error of the court in dismissing the bill and not granting such relief, the decree is reversed and the cause is remanded, with directions to overrule exceptions to the master’s report, and render decree thereon.

Reversed and remanded.