Summary
Wbit of Ebbob to the Circuit Court of Cook county; the Hon. Muebay F. Tuley, Judge, presiding.
On the 7th day of January, 1890, Edward Boby filed in the Circuit Court of Cook county three bills in chancery, one against Charles W. Colehour and James E. Clarke, one against Charles W. Colehour and Jared Myers Clarke, and one against Charles W. Colehour, to compel a conveyance to the complainant of certain portions of the south half and a part of the north-east quarter of section 8, and the north three-quarters of the east fractional half of section 17, in township 37, of range 15, in the county of Cook, containing 406 acres of land. While these bills were pending, Charles W. Colehour, on the 15th day of April, 1890, filed in the same court an original bill against Edward Boby and William H. Colehour, with which the three pending bills were afterwards consolidated, and upon which the principal controversies in the case arise.
Said bill alleges, in substance, that in the year 1871, Charles W. Colehour was engaged in the real estate business in Chicago, his brother William H. Colehour being interested with him in some portions of said business; that in the early part of the summer of that year Charles W. Colehour entered into a negotiation with Henry E. Clarke, representing his brothers and sisters who were then the owners of the above mentioned 406 acres of land, for the purchase of the same, and that said negotiation resulted in a conveyance of said land by said Clarkes to William H. Colehour, by warranty deed dated July 18, 1871, in consideration of the sum of $100,000, of which $10,000 was paid in cash, and after the assumption by William H. Colehour of a mortgage on said land to Mary P. M. Palmer for $4000, the sum of $86,000, the residue of the purchase ■ money, was secured by five promissory notes executed by William H. Colehour, payable in one, two, three, four and five years, with interest at the rate of seven per cent per annum, payable semi-annually, and by a deed of trust on said land to •V. C. Turner as trustee, said deed of trust containing a power of sale in case of default in the payment of said notes or any part thereof at maturity; that at the time of said purchase William Hansbrough furnished $5000 of the money to make the cash payment, and that Francis Corby, Wesley Morrill and Charles W. Colehour furnished the residue in equal proportions, and that it was then and there agreed between Corby, Morrill, Hansbrough and the Colehours, that William H. Cole-hour should hold the title to said land, one-half for Hansbrough and one-sixth each for Corby, Morrill and Charles W. Colehour, their interests to be in the profits resulting from the sale of said land but not in the land itself; that shortly after the Great Fire of October, 1871, Corby and Morrill surrendered all their interest in said land, and by a proper instrument in writing, conveyed the same to Charles W. Colehour; that on the 16th day of August, 1873, William H. Colehour bought the interest of Hansbrough for $15,066.47, and secured the payment of said consideration by deed of trust, running to Levi D. Boone, upon said north three-fourths of the east fractional half of said section 17.
The bill further alleges that, owing to the stringency of money in the years 1872 and 1873, and the inability of the owners of said land to sell and convert the same into money, said owners were unable to pay the interest maturing on said notes, and that thereupon said Turner advertised said land for sale under the deed of trust to him; that shortly after said advertisement, said Boby, who had previously acted as attorney for. the Clarkes, came to Charles W. Colehour and proposed to him to act as the attorney for him and William H. Colehour in protecting said land from sale under said deed of trust, and to take care of and protect said land against any foreclosure proceedings that might be instituted by either the Clarkes or Turner, and offered, to act as the attorney for the Colehours in that manner until the entire indebtedness against said land should be paid or removed, for one-fourth of what might be saved on the final sale of said land, after the payment of all debts, taxes and advances made on account of the same; that. the Colehours assented to said proposition; that said arrangement with Roby was made pending the negotiations for the purchase of the Hansbrough interest, and was finally consummated after said purchase; that at the time said arrangement was made, it was agreed that Charles W. Colehour should have the sole management and sale of said land, and that Roby should attend to all legal matters in relation to the same, and that Charles W. Colehour should receive, for managing said property, the sum of $5000 per year, and that upon the final sale of said property, after all advances made for the payment of the debts, taxes, incumbrances and liens against the same were paid, the net proceeds should be divided, one-half to Charles W." Colehour, one-fourth to William H. Colehour, and one-fourth to Roby; that on the 29th day of May, 1873, and before said arrangement with Roby was made, William H. Colehour executed under his hand and seal, acknowledged and delivered to Charles W. Colehour a warrant of attorney, authorizing him, as the attorney in fact of said William H. Cole-hour, and in his name, place and stead, to take possession and sole and absolute control and charge of said land, and plat and subdivide the same, sell and convey it by lots and blocks, receive the proceeds, borrow money, pay taxes, debts and incumbrances, prosecute, defend, dismiss, settle or compromise suits, employ an attorney, and generally, to have entire and exclusive charge of said lands and all business connected therewith, until the Palmer mortgage and the Turner deed of trust should be fully paid; that it was provided in said warrant of attorney that said Charles W. Colehour should be paid for his services, out of the proceeds of said lands, the sum of $5000 per year, and said warrant of attorney was declared to be continuous and irrevocable until said land should be free and clear, and said attorney should be paid in full all sums of money advanced by him and his salary.
It is further alleged that at the time said arrangement with Roby was made, said warrant of attorney was shown him as being then in full force and effect, and that he consented to and approved it, and took his interest subject thereto; that on the 16th day of August, 1873, in order that the rights of the parties in said land might be fixed and determined, the following declaration of trust was made and executed by William H. Colehour and delivered to said Charles W. Colehour, to be kept for the benefit of the parties interested in said land, to-wit:
“Know all men by these presents, that I, William H. Colehour, .a bachelor, being the owner in fee simple of the land in the .south half of section eight (8),' and the north three-quarters ■of east half of section seventeen (17), all in town thirty-seven ,(37), N., B. fifteen (15), east of the third P. M., Cook county, Illinois, more particularly described in deed dated July 18, 1871, made by Bobert D., Henry, Sarah J. and Harriet S. •Clarke, to me, which land is subject to an incumbrance of $86,000 to said Clarkes and- $4000 to Mary Palmer, and other sums due on account of said lands, do hereby declare that ■Charles W. Colehour shall be entitled to the one-half of said land, or the profits to be realized out of it after the above debts .are fully paid and all other necessary sums of money hereafter required shall be fully paid, and Edward Boby shall be entitled to the one-quarter of land, or profits thereof, when all debts .against said land hereafter have been fully paid.
“I reserve the right to handle the land as I please, without interference from Charles W. Colehour and Edward Boby. And should either of them seek to acquire any interest in the lands before it is fully paid for, he shall forfeit the interest he is above to be entitled to by the terms of this declaration. The power of attorney heretofore given to Charles W. Colehour shall remain in full force.
“The sole consideration for the interest of said Boby, as ■above named, grows out of his services as attorney to be rendered me as I require the same, until the land is fully cleared •of all debts of every nature.
“The terms of this trust can not he changed. Charles W. Colehour shall be my successor in this, trust; after him, Edward Roby shall be trustee, if Charles W. Colehour shall give up the trust. I reserve the right to act as trustee, however, during my pleasure.
“In witness hereof I have hereunto set my hand and seal, this 16th day of August, 1873.
William H. Colehoub. [Seal.]
“I have this day, August 16, 1873, given to Hansbrough, for his interest in said lands,' my notes for $15,066.47, and taken up my contract with him. ”
■ Attached to said declaration of trust is a certificate of the acknowledgment thereof by William H. Colehour before a notary public, dated August 13, 1875, and endorsed thereon is a certificate showing that said instrument was recorded July 14, 1888.
The bill further alleges that said declaration of trust was assented to and accepted by said Roby, and that from that time Charles W. Colehour, the complainant, has acted under said instrument and accepted the same as the sole agreement by which the interests of the parties in said land are defined; that in December, 1873, the complainant caused the south half of said section 8 to be subdivided and platted into blocks and lots, said lots being about 2000 in number, and that during that year and the year following, he made a large amount of improvements thereon, by throwing up and grading streets, digging drains, laying sidewalks and building bridges, and devoted his entire time to the improvement of said property and the sale of lots in said subdivision; that from the spring of 1872 to the year 1879, he had the sole charge of said land and the improvements thereon, and since the last mentioned date has had possession of said land, except the lot's conveyed to actual purchasers, and fenced the unsold portions, and expended out of his own pocket large sums of money thereon; that from 1873 to 1878, inclusive, Roby was daily cognizant of what was being done, and from week to week and from day to day knew the amount of money received from the sale of lots and what was done with it; that a large amount was expended in improvements, all of which were known to and approved by Roby; that the complainant never received from the sales of lots for his personal use more than $1500 per year and some years not that; that prior to 1878 the complainant had an arrangement with the Clarkes by which lots were released from the lien of the Turner deed of trust as they were sold, upon the payment to them of a certain sum upon each lot released, but that sometime during the year 1878 said Clarkes refused to grant any further releases, which prevented any further sales of lots.
That in October, 1881, said Clarkes filed a bill in chancery in the Circuit Court of Cook county to foreclose the Turner deed of trust; that Roby, at the time said arrangement was made with him for a one-quarter interest in the net profits from said land, assured the complainant and William H. Cole-hour that he knew certain facts which would prevent the foreclosure of said deed of trust, and that when said bill was filed he again assured the complainant that he could defeat said foreclosure suit; that about that time, as the complainant is informed and believes, Roby conceived the idea of taking advantage of the confidential position he held as attorney and confidential friend of the Colehours to get control of said property and to cheat and defraud them out of their rights therein, although for a long time thereafter he pretended to act with them and for their interest; that in September, 1878, a judgment for $4113.58 and costs was recovered against the Cole-hours in the Superior Court of Cook county in favor of O. H. Horton, receiver of the German National Bank, the debt for which said judgment was recovered having been contracted to raise money to pay, and which was paid, upon the Clarke indebtedness, as was well known to Roby; that an execution was subsequently issued on said judgment under which a large number of the lots and blocks in said subdivision were levied upon and sold, one Landis becoming the purchaser, and that a sheriff’s deed therefor was issued to said Landis November 1, 1883; that Boby, at the time, had in his possession notes belonging to the Colehours amounting to $20,000, and represented to them that he could buy said Landis’ title to said lots very cheap, as they were subject to the lien of the Turner deed of trust, and proposed to trade for the same as best he could, saying that he could do better probably in buying in said title than could the Colehours, and that he would hold the title in trust for all three under the same trust that it had formerly been held by William H. Colehour; that Boby did buy up said Landis’ title on the 16th day of June, 1884, the consideration expressed in the deed being $600, but the fact being, as the complainant alleges, that he only paid about $200, and that he now claims to be the absolute owner of said lands as against the Colehours.
That at the June term, 1878, of the Superior Court of Cook county, a judgment was recovered against the complainant, in favor of Charles B. McCoy, for the use of Frank W. Harding, for $3700 and costs, and that on the 23d day of May, 1885, other portions of said land were sold under execution issued on said judgment for the sum of $500, George F. Harding being'the,purchaser, and that a sheriff’s deed for the same was subsequently issued to him; that Boby informed the Colehours that he had got Harding to buy in said lots and to hold the same for the benefit of the Colehours and himself, to be conveyed when said debt to • Frank W. Harding should be paid; that afterward, and during the year 1888, Frank W. Harding was fully paid out of moneys received from a sale of a portion of the trust property, with the knowledge, consent and in the presence of said Boby; that on the 8th day of February, 1888, George F. Harding, at the request of Boby, deeded said lots and lands to him, and that Roby now claims to own the same absolutely, as against the Colehours.
That on the 24th day of September, 1879, the Crane Bros. Manufacturing Company recovered a judgment against the Colehours in the Superior Court of Cook county for $3591, and that afterwards an execution on said judgment was levied upon a large amount of the remaining lots and lands belonging to said trust property, and was sold by the sheriff on the 14th day of September, 1886, said Roby becoming the purchaser; that prior to said sale Roby, at the complainant’s request, bought said judgment for $750, of which the complainant paid $250; that it was then agreed between the complainant and Roby that Roby should hold said judgment for the benefit of the trustee of said land, and that if a sale should be made, Roby should purchase said land and hold the same as trustee, in the manner provided in said declaration of trust of August 16,1873, but that he now claims to hold the same for his own use and benefit, and denies that the Colehours have any interest therein.
The bill further alleges that, on or about the 1st day of May, 1879, Roby was dissatisfied with William H. Colehour and unwilling that he should act as trustee, and suggested that as the whole management of the property was in the hands of the complainant, he ought to act as trustee, and that in compliance with that suggestion, William H. Colehour executed and” delivered to the complainant a deed conveying to him the legal title to said land; that Roby advised that it better not be recorded at the time, and that the complainant held said deed and neglected to put it on record until July 14, 1888, when he had it recorded, but that Roby well knew of its execution and approved of it, and that from the date of its delivery the complainant acted as trustee in place of William H. Colehour, and that as such trustee he took possession of said land, fenced the portions not .sold, and has held possession thereof ever since; that on or about the 1st day of January, 1887, Roby, with intent to defraud the Colehours out of their just rights in said land, went to one Lender, who was a friend both of himself and of William H. Colehour, and who had been connected with said property as agent from the time it was subdivided and was familiar with its history, and represented to him that he, Roby, had, by sales on judgments, got control of and had become the owner of all the complainant’s rights in said land; that the attorney for the complainant in the Clarke foreclosure suit would have nothing to do with the complainant; that it was absolutely necessary that all the interests in said land adverse to a foreclosure should be got under one control, and that if he could get that, he could settle with said attorney and close up said litigation; that he” would protect the rights of every one owning any interest in said land, and he asked said Lender to see William H. Colehour and induce him to deed his interest in said land to Roby without the complainant’s knowledge; that Lender, believing said Roby and believing that it would be for the interest of all concerned that said matters should be settled, went to William H. Colehour and told him what Roby had said and induced him to meet Roby; that at said meeting Roby told William H. Colehour in substance what he had told Lender; that William H. Colehour told Roby that he would do nothing to interfere with the complainant’s rights; that Roby then told him that the complainant’s rights would be protected, and that he should have what he was entitled to ; that the only way to get anything out of the land was to get the entire title in Roby; that he could then settle the foreclosure suit, but that unless that was done, everything would be lost; that William H. Colehour seemed reluctant to make a deed to Roby, and that Roby then told him that he could get nothing in any other way; that he, Roby, held entire control of the house in which Colehour lived, and that if he did' not do as he, Roby, wished, he would put him out into the street in three days; that Lender, believing that Roby told the truth, and that it was for the best interest of Colehour to do as Roby requested, strongly urged Colehour to convey his title to Roby, and Colehour, believing Roby and Lender, and being then unfriendly to the complainant, made such conveyance without the complainant’s knowledge; • that Roby then produced a deed which was finely written and read it to Cole-hour and that Colehour, believing it was read correctly, signed and acknowledged it and caused his wife to sign and acknowledge it, and delivered it to Roby secretly and without the knowledge of the complainant; that said representations of said Roby were false; that he had not then by sales under judgments got control of and that he did not own the complainant’s interest in said land, but on the contrary, held whatever title he had so acquired in trust for the complainant and William H. Colehour; that it was not true that the attorney for the Clarkes in the foreclosure proceeding would have nothing to do with the complainant, or that Roby, if he could get control of all the interests in said land, would séttle with said attorney; that Roby did not hold the legal title to the house and lot where William H. Colehour lived, and Roby, instead of protecting the complainant’s rights, was deliberately attempting to cheat him out of the same; that the deed executed by William H. Colehour, instead of only conveying the one-quarter interest of said Colehour, in fact conveyed also the interest of the complainant.
It is further alleged that after the Clarkes refused to give further releases of lots sold, Roby, William H. Colehour and the complainant got together and carefully examined all books and accounts showing sales of lots and disbursements of money received therefrom; that Roby then had in hand notes and securities belonging to said trust amounting to at least $15,000, and that it was then agreed between the three, that matters between them should be considered square, and that neither owed the others anything, and that Roby should hold, collect and account for said securities; that since that time the com-i plainant has paid out and expended in caring for and protecting said property more than twice as much as Roby paid in purchase of said judgments or of the lots sold thereunder, and that Roby has rendered no account of- the notes and securities-held by him.
That in 1886, Roby, acting as the attorney for said Cole-hours, advised the commencement of a suit in forcible detainer against one John Thurman who was in the occupancy of a part of said land, to recover possession of the same; that a writ of restitution was issued in said suit and delivered to a constable to execute, but that in the execution of said writ, said constable committed a certain irregularity for which the wife of said Thurman brought suit in the Superior Court of Cook county against said constable and said Colehours and recovered therein a judgment for $1500 and costs, which is now a lien on the interests of said Colehours in said land; that at the time said judgment was recovered, said Roby agreed that, as said judgment had resulted from an attempt to recover possession of said land upon his advice and for the benefit of all interested therein, he would pay one-fourth of the same.
The bill alleges that from the date of said arrangement with Roby the complainant has in all respects and to the best of his ability endeavored to carry out and promote the best interests of the equitable owners of said land, but that said Roby, taking advantage of the complainant’s financial position and of his confidential relations with the complainant as his attorney, misled him and induced him to consent to said execution sales, the complainant believing that said Roby would, in good faith, carry out his promises and agreements; that said Roby has not carried out his said-agreements, but in violation of his. duty as one jointly interested with said Colehours in said land, has deliberately and intentionally attempted to deprive them of their rights in said land; that from 1873 to the latter part of 1889, complainant believed that Roby was working with him in good faith to carry out the original intentions of said parties to defend said foreclosure suit and protect the equity of redemption in said land and sell and dispose of the same to the best advantage and divide the net proceeds as provided in said declaration of trust, but that said Boby now claims that neither the complainant nor William H. Colehour has any right, title or interest in said land, and claims the same as his own, subject only to the amount due to said Clarkes, and has'filed his three bills in chancery to compel the complainant and two other parties who held the legal title to portions of said land for the benefit of the .equitable owners thereof, to deed said portions of said land to him; that in fact said two parties have deeded to the complainant the titles they held to said land and that he now holds the same subject to the order of the court.
It is further alleged that a portion of said land was sold in pursuance of the decree in said foreclosure suit on the 30th day of December, 1889, and the residue on the 29th day of January, 1890; that said lots were sold separately and the unsubdivided land in tracts, and that none of said lots or tracts sold for one-half of what they could be sold for by a receiver appointed by the court; that the condition of the title is such that the equity of redemption can not be sold for one-tenth of .its real value if at all; that if a good title to said property could be furnished, it could readily be sold for from $200,000 to $250,000 over and above the amount due on the Clarke deed of trust; that if a receiver should be appointed and Boby, the complainant and William H. Colehour required to convey their titles to such receiver, he could, by redemption from said sale, give a perfect title, and if directed to sell the same and" hold the avails to abide the decree of the court, a large amount could be realized; that neither Boby nor the Colehours have the means to redeem from said sale, and that no purchaser can be found who will be willing to take the title as it now stands and pay anything like an adequate consideration.
The hill prays that said deed from William H. Colehour to Roby be held and declared null and void and of no effect, and set aside as a cloud upon the title of William H. Colehour; that a receiver be appointed and Roby, William H. Colehour and the complainant be ordered to convey to such receiver the titles to said land or any part thereof held or controlled by them or either of them; that said receiver be ordered to sell •the same and hold the proceeds subject to the final decree in the cause; that the complainant and William H. Colehour be decreed to be the owners of the equity.of redemption in said land; and also a general prayer for relief.
William H. Colehour answered said bill admitting its material allegations, and afterward filed his cross-bill setting up substantially the same matters alleged in the original bill of Charles W. Colehour, and praying in his own behalf substantially the same relief.
Roby answered the bill and cross-bill, admitting the purchase of said land from the Clarkes and the conveyance of the same to William H. Colehour substantially as alleged, Hansbrough furnishing $5000 of the money used in making the cash payment and receiving from William H. Colehour a declaration of trust entitling him to one-half of the profits when the land was sold, but alleging that the other $5000 was furnished by Morrill alone, and that William H. Colehour executed to Morrill, Corby and Charles W.,Colehour a declaration of trust entitling them jointly to one-half of the net profits which should accrue from the sale of the land; that about the 1st day of May, 1872, Morrill and Corby, in consideration of an agreement by William H. Colehour not to call upon them to pay any part of the unpaid balance of the purchase money, and of Charles W. Colehour’s note to Morrill for one-third of said sum of $5000 advanced by him, it was agreed between Morrill, Corby and Charles W. Colehour that said declaration of trust to them should be destroyed, it never having been recorded, and that the interests of Morrill and Corby secured to them by said declaration of trust should be transferred to Colehour, but that said note to Morrill has never been paid by Colehour.
The answer alleges that Hansbrough paid, in interest on the Palmer mortgage and the Turner deed of trust the sum of $6125.35, but the interest and a part of the principal of the deed of trust being in arrears, Turner, the trustee, in the latter part of the summer of 1873, advertised said land for sale; that Roby was employed by the Clarkes to prepare and publish the notice of sale, that being the only matter in which he acted as their attorney; that the Colehours at that time were represented by another attorney, who informed the said trustee that if a sale should be made the title would be uncertain, owing to the fact that the place where the sale was to be made had been destroyed by fire, and that said trustee, after being advised, concluded to abandon the sale, provided the Colehours would pay Roby’s fees and the cost of publish: ing the notice, which they agreed to do, and the sale was thereupon abandoned; that Roby did not, after the advertisement and before the day fixed for the sale, go to the Colehours and propose to act as their attorney in protecting said land from sale under the deed of trust or from foreclosure, and that he had no conversation with them in any manner suggesting such arrangement.
The answer denies that there was any agreement at any time that Charles W. Colehour should have the sole management, charge and sale of said property, or that Roby should attend to the legal matters in relation to the same, or that Charles W. Colehour should receive $5000 per year, or any other sum, for managing the property. It denies all knowledge on the part of Roby of the execution by William H. Cole-hour to Charles W. Colehour of the warrant of attorney of May 29, 1873, or that any such paper was ever shown him or that he ever consented to any such arrangement. It also denies that there was any arrangement in relation to said land between Roby and the Colehours on the 16th day of August, 1873, or that Roby ever saw the declaration of trust of that date, or heard of its existence prior to the year 1889, or that he ever assented to any such instrument or arrangement.
The answer alleges that Hansbrough, on the 16th day of August, 1873, entered into a contract with certain parties for the sale of his interest in said land, but the purchaser failing to carry the contract out, Hansbrough subsequently employed Roby to sell it for him, agreeing to give him a commission of $1000 if he would sell it for $20,466.87; that Hansbrough proposed a sale to Charles W. Colehour, and that Roby should take an interest with him in the purchase, and offered to accept in part payment Roby’s note for $5400, less the amount of said commission; that Colehour said he had no money, but it was finally agreed between Hansbrough, Colehour and Roby, that Hansbrough should sell his interest for $20,466.87, of which $1000 should go to Roby for his commission, and that for the residue he should take Roby’s note for $4400, and the note of William H. Colehour for $15,066.87 secured by a deed of trust upon the north three-quarters of the east fractional half of said section 17, both notes to be dated back to August-16, 1873, and to bear interest from that date, and that the sale was consummated on those terms; that said Charles WC-olehour thereupon, in the presence of William H. Colehour and Roby, on the 18th day of October, 1873, the day on which said sale was consummated, wrote upon the declaration of trust in favor of Hansbrough an assignment by him, in which it was expressed that, in consideration of $15,066.47 in hand paid by Charles W. Colehour and $4400 by Roby, he assigned, sold and transferred all interest in said instrument to said Colehour and Roby, which assignment was dated October 18, 1873, and executed by Hansbrough under seal.
It further alleges that, in consideration of the fact that Roby had furnished a part of the consideration for said purchase as above stated, it was insisted by him that he should have an undivided one-half of said undivided one-half interest in said land, and that Charles W. Colehour wrote out with his own hand, and said William H. Colehour signed, sealed and delivered to said Boby the following instrument:
“I, William-H. Colehour, being the owner in fee of the south half of section 8, and part of the north-east quarter of same, .and of the north-east three-quarters of section 17, all in T. 37, N., B. 15 E., third P. M., Cook county, as conveyed me by deed of Henry E., Bobert D., Harriet S. and Sarah J. Clarke, ■dated July 18, 18^1, and recorded August 2, 1871, in Cook ■county, Ill., do hereby acknowledge that after the'payment of all sums of money due on any notes of mine secured upon said land, the payment of all interest payable on account of said notes, the payment of all moneys advanced on account of any development of said land, or on account of any industry on or beneficial to said land, and the payment of all sums of money advanced by C. W. Colehour and Edward Boby, or hereafter to be advanced on account of anything pertaining to said land, then Edward Boby shall be entitled to the one-fourth part of the net profits of said land, Charles W. Cole-hour shall be entitled to the one-half of the net profits of said .land, and I shall be entitled to the one-fourth part of the net profits of said land. This shall apply to the heirs, executors •or administrators of any and all of the parties above mentioned, but no assignment of any interest shall be made without the written consent of all the parties hereto first obtained. And this division of interest is in consideration of money advanced by the above mentioned Boby and C. W. Colehour on behalf of said land, and subject to any agreement of mine with reference to said land, heretofore made by me, concerning any ■division into lots, conveyances, management thereof, or of any indebtedness incurred in behalf of said land.
“And I hereby make, constitute and appoint Charles W. Cole-"hour my true and lawful attorney in fact, to sell said lands by lot or block, as he may deem best, and to give deeds for the same, with proper notes back for deferred payments, and to do this, shall have full power to sign my name to any deed or instrument, and acknowledge the same, in as full a manner as I could do myself, with Edward Roby as his substitute; and I do hereby confirm all acts done by my attorney in fact, and also his substitute in this behalf, as my acts, and as binding on me or my heirs, executors or administrators.
William H. Oolehoub. (Seal.)”
The answer alleges that Roby afterwards paid said note given by him to Hansbrough, but that the note given by William H. Colehour nor any part of it was ever paid by the Cole-hours. It denies that Charles W. Colehour caused any portion of said land to be platted and subdivided, or made any improvements thereon, but that said subdivision was made by William H. Colehour, in conjunction with the owner of an adjoining tract of land, and that whatever streets were graded, ditches dug or sidewalks built, were paid for out of the proceeds of the sale of lots, and that the bridges were built by the village of Hyde Park, mainly through the efforts of Roby; that Charles W. Colehour did not have charge of said land from 1872 to 1879, but that the same was in the possession of William H. Colehour, and that whatever was done thereon was done by William H. Colehour, or by Charles W. Colehour as his attorney and agent; that Charles W. Colehour expended no money of his own on said land, but on the contrary took the proceeds of said land in large and small sums and applied the same to his own use; that on the 22d day of September, 1886, Charles W. Colehour, for a valuable and sufficient consideration, sold, conveyed and quit-claimed all his right, title and interest in said land to William H. Colehour, and that he thereafter held no right, title or interest in or claim upon said land or any part.of it; that August 30, 1878, he filed in the District Court of the United States for the Northern District of Hlinois his petition to be adjudicated a bankrupt, and that he was thereupon so adjudicated, and that his property and interests of every nature were duly conveyed to his assignee in bankruptcy; that having previously conveyed all his interest in and to said land to William H. Colehour, and having then no interest in said land or any part thereof, or in the proceeds thereof, he did not schedule the same in the bankruptcy proceedings.
The answer admits that prior to 1878, there was an arrangement with the Clarkes for the release of lots from the Turner deed of trust upon payment of a certain sum in cash per lot, and that the Clarkes subsequently refused to grant further releases, and that on the 24th day of October, 1881, the Clarkes filed their bill to foreclose said deed of trust. It denies that Roby assured the Colehours or either of them that he knew facts which would prevent a foreclosure of said deed of trust or that he could defeat such foreclosure.
It further denies that Roby, at any time, conceived any design to take advantage of the Colehours, or that he held any confidential position as attorney or friend of either of them or otherwise, or that he pretended, in said foreclosure suit or otherwise, to act with them or for their interest, but alleges, on the contrary, that Charles W. Colehour was himself a lawyer, and that William C. Goudy acted for and as the attorney and adviser of the Colehours in September, 1873, and from that time until Decepaber, 1885, when the Clarke foreclosure suit came on for trial, and that various other attorneys acted for them in various legal proceedings; that Roby di^ not at any time become their attorney in consideration of one-fourth of the profits of said land; that from 1873 to 1878, he was never their attorney except in a very few cases under special arrangement in each case; that since January, 1878, he has acted for his own interest, and in various litigations in which the Colehours have been involved, he has been the attorney for the parties opposed to them.
The answer alleges the recovery of a judgment for $2265.50. and costs against the Colehours by the Mechanics’ National Bank December 6, 1875, and the sale of some five hundred lots in said subdivision on execution issued thereon, and that Roby had no notice of said proceeding until December 22, 1877, after a sheriff’s deed for said lots had been executed and recorded; that on the 31st day of October, 1878, a judgment for $4113.58 and costs was recovered against said Colehours by Horton, receiver, and that Roby had no notice of said suit or judgment until after another portion of said land had been sold under execution-on that judgment and a sheriff’s deed to Landis had been executed therefor; that Roby had possession of no notes belonging to the Colehours; that he had no conversation with them concerning the Landis title as alleged in the bill, and did not agree to buy it in his own name and hold it in trust for the benefit of the three, but that having first learned of the Landis title about April, 1884, he, without consulting any one, called'upon Landis and purchased his title for $600, and paid him that sum of cash out of his, Roby’s, money, and received a conveyance of said title in his own right, and in no manner for the benefit of any other person whatsoever.
' That on the 2d day of July, 1877, Charles W. Colehour, without Roby’s knowledge, fraudulently caused a deed for a large parcel of said land, worth over $30,000, to be made to Jared Myers Clarke, and also in like manner, on the 14th day of January, 1878, caused a deed of a large number of lots in said subdivision to be made to Jacob Bremer, the title to which afterwards became vested in James E. Clarke, and that Roby having soon afterwards discovered said conveyances, charged Colehour with the same, and that thenceforth for eight years his relations with said Colehour were adverse.
It is further alleged that on the 4th day of June, 1878, a judgment for $3700 and costs was recovered against Charles W. Colehour by Charles B. McCoy, and that a portion of said land was sold under execution on that judgment to George F. Harding, and that a deed was issued to him; that said title was not held by Harding for the benefit of the Colehours;' that said title was paid for by Roby with his own money, and was conveyed to him for his own use and benefit, and that the Colehours had no interest therein; that on the 24th day of September, 1879, a judgment for $3591 and costs was recovered against the Colehours by the Crane Brothers Manufacturing Company, said judgment being for indebtedness of Charles W. Colehour in no way connected with said land; that an execution was issued on said judgment and levied on said lánd as alleged in the bill, and that said land was sold to said Roby in September, 1886; that Roby bought said judgment from the plaintiff therein for $750 for his own use and paid -therefor with his own money, and that there was no agreement between him and the Colehours in relation to the same; that the Colehours never furnished Roby with any money or -thing of value to buy said judgments or judgment titles, and never in any manner contributed in the slightest degree to the purchase thereof.
The answer denies that the deed of May 1,1879, from William H. to Charles W. Colehour was executed at the suggestion ■of Roby, or that he had any notice of such deed until sometime in 1889, or that Charles W. Colehour took possession of said land, but on the contrary alleges that from September 22, 1876, hitherto, said Charles W. Colehour has stated, both orally and in writing, and both in conversations and under oath, that William H. Colehour was in possession of said land down to late in the year 1887, and until after Roby’s purchase from William H.- Colehour of all his interest in said land; that William H. Colehour, after giving Roby the deed alleged in the bill, turned over to him the possession of said land, and notified the tenants to attorn and pay rent to him, and that Roby entered into possession of said land and held possession thereof during the whole of the years 1888 and 1889, without any objection on the part of Charles W. Colehour, or any •claim on his part to the possession, control or charge of the same.
The answer denies the negotiations and misrepresentations leading to said conveyance from William H. Colehour to Roby charged in the bill, and gives Roby’s version of the transaction at great length, by alleging facts showing that said conveyance was obtained by Roby in good faith and for an adequate consideration, and without the employment of any misrepresentation or undue influence.
The answer denies a settlement of accounts between the Colehours and Roby after the Clarkes had refused to grant further releases as alleged in the bill, or that the Colehours commenced and prosecuted the forcible detainer suit mentioned in the bill-by Roby’s advice, or that Roby agreed to pay any part of the judgment obtained by Mrs. Thurman against the Colehours, or that Roby sustained any confidential relations with the Colehours, or had anything to do with them in the matter of the. several execution sales above mentioned. It denies that Roby was the attorney of the Colehours in the Clarke foreclosure suit, but on the contrary that he litigated for himself, and that having purchased all the right and interest of William H. Colehour, he, in prosecuting his appeal to the Supreme Court, used the name of said Colehour as he had a right to do.
The answer sets up and relies upon the Statute of Frauds both generally and also specifically as barring any equitable interest of the Colehours or either of them in the titles obtained by Roby through said sheriff’s deeds, and all interest claimed by them or either of them through agreements by Roby not evidenced by any written memorandum signed by him; and also charges Charles W. Colehour with laches in the assertion of his alleged equitable interest in the titles obtained by Roby through said sheriff’s deeds.
To each of the three bills filed by Roby, Charles W. Colehour filed his answer setting up his rights in the land there in question substantially as set forth in his original bill. James E. Clarke, in the suit against him, answered alleging that he had conveyed the title held by him to Charles W. Colehour and disclaiming all interest in the subject matter of the bill. Jared Myers Clarke failed to answer the bill against him and was defaulted, but it appears that the land which had been conveyed to him had also been reconveyed to Charles W. Colehour, of to some member of his family and that said Clarke therefore had no interest therein.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
