Oliver v. Wilhite

Mr. Justice Wilkin

delivered the opinion of the court:

Prior to the submission of the cause counsel for appellants entered their motion to strike from the files the ássignment of cross-errors by the defendants T. S. Wilhite, Maude J. Barlow and J. 0. Howard, questioning the findings and decree against them. The grounds of the motion are, “that said parties did not perfect an appeal from the finding of the court below; that the appellants did not appeal from the finding of the court below so far as they related to the said parties so filing cross-errors, but only to reach and hold parties not held in any way liable by the court below, as shown by the stipulation before the court as to what the appellants appealed from; also, that the appeal bond shows that the appeal was not general.” To that motion no counter-suggestions were filed and we reserved it to the hearing, but counsel for said three appellants have said nothing in their argument in support of their right to assign cross-errors.

• Clearly, the first ground of the motion is untenable. Section 78 of the Practice act gives the right to appellees or defendants in error, in all cases of appeal or writ of error, to assign cross-errors, and makes it the duty of this and the Appellate Courts to dispose of the same as in other cases of assignment of error. When, however, a decree in chancery is severable,—that is, composed of distinct parts having no bearing upon each other,—each part may be treated as a distinct decree and an appeal taken from one part without affecting the others. (Walker v. Pritchard, 121 Ill. 221; Union Trust Co. v. Trumbull, 137 id. 146; Moore v. Williams, 132 id. 591.) And when an appeal from one part of a severable decree is taken, cross-errors cannot be assigned as to parts not appealed from. Walker v. Pritchard, supra.

While the exceptions to the decree on behalf of the appellants were general and the prayer and order allowing the appeal was from the whole decree, there is a recital in the record (not abstracted) “that Revilo Oliver and Amaretta Oliver, complainants, having stipulated in open court, by their solicitors, that they are only excepting to the decree of the court on the ground that the court did not hold George E. Levings, Hannah T. Shipley and other defendants, or some of them found by the court as innocent purchasers, liable as knowingly participating in the fraud, and the finding of the court that the deed for section 38 was in fact delivered by Amaretta Oliver to Revilo Oliver, and passed title as far as J. E. Brown was concerned.” This recital effectually shows that neither Revilo Oliver nor Amaretta Oliver intended to take an appeal from that part of the decree which found the three defendants guilty and liable as charged.

But of still greater significance is the fact that-in the appeal bond filed by the appellants and approved by the court, neither T. S. Wilhite, Maude J. Barlow nor J. 0. Howard is mentioned, either in the obligatory part or in its conditions. On the contrary, the recital in the condition expressly states that the appeal is from a decree against the appellants in favor of‘George E. Levings and others, defendants named, not including these parties. In other words, the appeal was not perfected against them or either of them. Nor have the appellants assigned any error on the decree in so far as it finds T. S. Wilhite, Maude J. Barlow and J. 0. Howard guilty of the alleged conspiracy and fraud and renders a money judgment against them. Upon these facts and the foregoing authorities it is manifest that they have no standing in this court to assign and insist upon the cross-errors relied upon. As to them the decree of the circuit court is final on this appeal.

As to the other defendants certain preliminary questions are raised in the argument of counsel for the complainant Eevilo Oliver.

First—It is claimed the master wrongfully refused to open up the case for the purpose of letting in alleged newly discovered evidence. After the case had been pending before the master for so long a time, nothing but the most urgent necessity for the attainment of justice between the parties could have justified the opening of the case. Upon counsel’s own showing- no sufficient reason is given for the failure to discover and introduce the testimony before the evidence was closed. The facts sought to be introduced were merely collateral to the issue and in no sense conclusive. Some of them had already been offered in evidence. They were all, if competent at all, merely cumulative. We said in Hall v. Fullerton, 69 Ill. 448: “There was an application for a rehearing in the case on the ground of newly discovered evidence, the refusal to grant which is assigned for error. The newly discovered evidence was merely cumulative and not conclusive, which, according to well established rules, is no ground for granting a rehearing.” (See, also, Humphreys v. Allen, 100 Ill. 511.) We see no reason why the same rule should not apply on an application before the master, after the evidence has been closed and arguments heard, to re-open the case and permit the parties to introduce further evidence. There must be an end some time to the taking of evidence before the master, and his refusal to re.-open the case will not be ground for reversal unless it clearly appears that he has abused his discretion in that regard. In this case his ruling was manifestly right.

Second,—When the court came to decide the case there was a question as to whether one of the defendants, James A. Smith, had paid a valuable consideration for eighty acres of the land in controversy conveyed to him. Smith and one George W. McCabe were called to the witness stand to be interrogated by the judge in regard to that matter. Counsel for complainant Revilo Oliver objected unless the case was opened generally. After some conversation between the court and counsel for the complainant the witnesses were examined by the judge. No specific objection was made to questions propounded to them, or their answers, and the abstract fails to give the testimony of either of said witnesses. The action of the court in examining these witnesses is insisted upon as error. There is nothing here to show that the testimony so heard was prejudicial to the complainant, or that it was of such importance- as to call for a reversal, even though the ruling of the court had been erroneous. No possible injury could have resulted to the complainant. His counsel was offered the opportunity of cross-examining the witnesses.

All questions raised by the cross-errors stricken out being eliminated from the case, we have only to consider whether the chancellor was justified in holding Prank Gillespie and others, alleged to have been co-conspirators with T. S. Wilhite, Maude J. Barlow and. J. C. Howard, not guilty, and that they (except Mrs. A. P. Wilhite and John A. Wilhite) were innocent purchasers of the property which was conveyed to them. These are purely questions of fact.

The case is argued on behalf of counsel for complainant Revilo Oliver with little or no reference to rule 15" of this court, three separate and distinct arguments being-filed by the respective counsel. The evidence was taken by the master at some five or six different places. Some of the witnesses were re-called again and again, their testimony being disconnected and fragmentary. Depositions were introduced on behalf of complainants, several of which were taken a second time, and the evidence of two witnesses after they had testified orally before the master. Over one hundred and fifty witnesses were called and moré than one hundred exhibits offered. A very large part of this voluminous testimony has no proper application to the issues in the case. Many of the exhibits make the case little less than ridiculous. The abstract presents the testimony in the disconnected manner in which it was taken, and the index affords very little assistance in an effort to group the facts. Under these conditions it would be utterly impracticable to attempt a discussion of the testimony at length, nor would it serve any good purpose to do so. As to these defendants the findings of the master and chancellor are substantially the same. We entertain no doubt that the clear preponderance of the testimonj7 sustains that finding. In fact, we have been able to discover no evidence tending to show that these parties had any connection whatever with the transactions between Revilo Oliver and the three parties found to have been guilty of the conspiracy and fraud charged in the bill. Whatever wrong was committed by them was consummated before any conveyances were made to either of the alleged co-conspirators, and at least as to a number of these withqut any knowledge even of the parties. The evidence also clearly shows that they were innocent purchasers. Revilo Oliver himself testified that he knew when he made the deeds that the intention was to re-convey to other parties, and that he made some of the deeds leaving blanks for the name of the grantee, with a power of attorney to fill it in. When asked about the property, after he had conveyed it, by some of these very purchasers, he stated repeatedly that he had no interest in it and claimed none. His counsel place reliance upon the alleged frand and deception which they say was practiced upon him by the woman, Maude J. Barlow, in bringing about his engagement and subsequent marriage with her. This opinion need not be burdened or extended with the details of that foolish, and in many respects disgusting, transaction. It is inconceivable that a man of his age and apparent intelligence would become the victim of such a woman, but there is no evidence in this record tending to show that any of these parties aided, abetted or assisted her in that matter, and as to some of them his relations with her were.in fact unknown. It is difficult to believe, from his own testimony, that he was ignorant of her real character. Morfeover, his engagement to her and all his transactions with her were subsequent to, and, so far as we can see, without any direct connection with, the contracts in regard to the property conveyed by him.

On the whole record we are satisfied that the decree of the circuit court, as between Revilo Oliver and these defendants, is as favorable to him as he has any right to ask, and that it does substantial justice to the defendants. The decree, therefore, on the bill of Revilo Oliver against T. S. Wilhite and others, No. 3036, is accordingly affirmed. The cross-errors of Mrs. A. F. Wilhite and John A. Wilhite are overruled.

On the bill of Amaretta Oliver, No. 3054, the sole question is whether the conveyance from her to Revilo should be set aside as against the defendant J. E. Brown,, a judgment creditor of Maude J. Barlow and Revilo Oliver. The evidence wholly fails to show that the conveyance was obtained by legal fraud. There is evidence in the record to the effect that the land in fact belonged to Revilo Oliver and was held by his mother in trust for him. But admitting that the weight of the testimony is to the contrary, we think her deed to him passed the title at least as to innocent third parties. The conveyance was, at most, a voluntary one, knowingly and understandingly made, and whether for a good or bad purpose could make no difference as to the defendant Brown, without notice as to why it was made or how it was obtained. The evidence as to the delivery of the deed is conflicting only in that the complainant swears that it was not handed to the grantee. Other witnesses swear positively that there was an actual manual delivery of it to him. But both parties to the deed admit that it was given to Maude J. Barlow in his presence, and he clearly understood that delivery to be for the purpose of conveying the land to him. He afterwards re-conveyed it to his mother. The‘promise not to have it recorded, even if made, could avail nothing as against the defendant Brown without knowledge of that promise. We entertain no doubt that the court below properly held the land liable to the judgment and execution of Brown, and its decree in that regard will be affirmed.

Brown has assigned cross-errors in this court questioning the ruling of the chancellor in consolidating the two cases over his objection, and in requiring him to pay one-third of the costs in that action. The consolidation of the cases was only for the purpose of the hearing', and but for the confused manner in which the testimonjr relating to the case is abstracted and indexed no particular injury would have resulted from that consolidation. At all events, he has suffered no injury from that order. We cannot agree with the finding and decree against him for one-third of the costs on that bill. It seems that that ruling was upon the theory that the evidence tending to show that section 33 was really the property of Revilo was unnecessary to the defense, because the proof showed a valid conveyance by his mother to him. When the evidence as to the ownership of the land was taken it could not be known what the ruling of the court would be as to the validity of that deed,—that is, whether it had been obtained by fraud and whether it had been delivered,—and the defendant had a right to rely upon both defenses in support of his judgment lien. The decree in that regard should be so modified as to require the complainant to pay all the costs. That modification will be made in this court and in all other respects the decree of the circuit court of Living'ston county will be affirmed.

Decree modified and affirmed.