Moss v. Jack

HENSHAW, J.

This is an action in equity to have a certain assignment and deed executed by plaintiff to defendant set aside, as having been fraudulently procured, and to recover from defendant the sum of fifteen thousand dollars for moneys and property of the plaintiff obtained by defendant under this deed and assignment. The trial resulted in findings .wholly exonerating the defendant from the charges and imputations of fraud, and judgment followed the findings in defendant’s favor.

The essential facts are the following: Plaintiff is a son, heir, and devisee of William S. Moss, deceased. Upon his death William S. Moss, who was a resident of California, left a will, whereby were appointed as executors of his estate Judge Baldwin and defendant, Jack. Defendant, Jack, had married a daughter of William S. Moss, and is a brother-in-law of plaintiff. Besides property in California, Moss left property and property interests in the state of Illinois, which were, and for years had been, deeply involved in litigation. It is not necessary to particularize in this regard further than to say that this litigation involved the adjustment of partnership accounts, awards to Moss in the accounting, the levy upon and execution sales of pieces of real property, the purchase of them by Moss, appeals resulting in setting aside these decrees, the clouding of the titles so obtained by Moss, affirmance of the execution sales as to certain pieces, and disaffirmance as to others, litigation over this, outstanding liens upon these pieces of property, with resulting confusion and uncertainty as to what would be the ultimate outcome of the litigation. An administrator in Illinois had been appointed to take charge of the property of Moss in the state of Illinois, which property was, of course, first subject to the claims of the Illinois creditors. Jack himself had been the attorney in fact of his father-in-law during his lifetime, and after his death presented to his co-executor, Judge Baldwin, a claim for thir

[192]

teen thousand dollars, ten thousand dollars of which were for services rendered as his attorney in fact, three thousand dollars being for advancements and payments of money. Judge Baldwin, with the consent of all the heirs and devisees, approved this claim, and it was in turn approved by the judge in probate, but thereafter objection having been made by one of the devisees, Jack, with the consent of the court, withdrew his claim for the purpose of presenting it, and it was presented to the probate court in Illinois. Some time before, while Judge McCulloch in Illinois was acting as attorney and adviser for the California executors and the heirs of Moss, Jack, at McCulloch’s suggestion, had purchased certain outstanding trust titles which were liens upon the Illinois property, in which the estate of Moss was interested, for the purpose of protecting the Moss interest from loss by hostile and aggressive foreclosure, as in the then uncertain condition of the Moss title or interest, it was extremely doubtful whether it would be expedient for the-estate to attempt to redeem from such forced sales,-—that is to say, whether its own interests were sufficiently secure to justify these added expenditures. Thus Jack came to have large demands against the property in Illinois, both by reason of his ownership of the trust-deeds, as well as by reason of his thirteen-thousand-dollar claim against the estate. In addition to this, there were other claims filed for approval, in Illinois, some of which were unquestionably valid, others of which were doubtful, and there were in addition court costs and attorney’s fees for the litigation already had and still pending. In August, 1891, all of the heirs and devisees of Moss joined in the conveyance and assignment to Jack of the Illinois property, and it is this conveyance and assignment which is here attacked for its fraudulent procurement. At the time when plaintiff executed it he was over the age of twenty-five years, and some twelve years passed thereafter before this action was commenced. The specific allegation of fraud charged in the complaint is that on the twenty-ninth day of August, 1891, while Jack was acting as executor of the last will and testament of Moss, he, Jack, requested plaintiff to convey to him the property belonging to the estate of Moss in Illinois, and, acting upon the request of Jack, he joined in