H.\.RMON 'Ii. HARMON.
et ai. v.
et aI. (two cases.)
(O£rcuit Court, N. D. Illinois. January 4, 1892.)
In Equity. Bills by Jacob M. Harmon and Jeremiah R. Harmon, respectively, against Anthony Harmon and others, beneficiaries under the will of Jacob Harmon, deceased, for the specific performance of parol contracts made by the deceased with complainants. The two cases were argued together. Bills dismissed for want of equity. Doyle, Morris &: Pierson, for complainants. J. S. Norton and J. W; HoweU, for defendants. BLODGETT, District Judge. These are bills in equity for specific performance of parol contracts alleged to have been made between complainants, respectively, and one Jacob Harmon, whereby Jacob, who was the )lncle of complainants, being the owner of a large tract of land in Iroquois county, in the state of Illinois, agreed with complainants that, if they would move onto the land described in the two rei"pective bills, and improv'e the same, and pay him an annual rental, at an agreed rate, from time to time, per year, as long as he lived, the land should become death. JacohHarmon died in February, 1885, and by his theirs at will, made a couple of weeks prior to his death, an entirely different disposition of the property in question was made from that alleged in these bills, and this bill is filed against the beneficiaries under the will to enforce'the specific performance of the alleged contract. The two cases stand. upon substantially the same proofs, and have been argued and considered together. .v.51F.no.5-8
There is 'but little, if any, conflict, in t,he testimony in the cases. tends;t6:shdw that, 'ih the year 1871, Jacob a man ,ad,vl!.nced years and a bachelor, Harmon, who was was then the owner ofabout 3,fOOacres of lan'd in Iroquois county, in this state, 90plpl&inant J:acob M.Han;non that if h,e (Jacob M.) would move onw a part ofsaid.land, 'and improve it, and pay him a yearly therefor, ns ,tiille agreed, he, the said ,complainant,should own the land at Jacob's death. The prooLalso shoWS that ()omplaina:nt Jacoh M. Harrrion moved. onto the land, and took possession of about 1,500 acres of it, which he improved by fenand the erection. of houses and farm buildhags, and has continued' in such possession from that time until the filing of these bills; that jIi arrangement was made with the complainant Jeremiah R. Harmon, in regard to about.800 acres of land adjoining, on the occutJied by Jacob M. Harmon. The proofs ofieredi'n',support of the billsis :follnd mainly in tbetestimony of complainants themselves,and in statements made from time to tilue by J persons hom he was intiml1t.e, to the effectthM he had given the boys the land; that they would own it at his death; that all he wanted was that they should pay him his rent as longas,he lived. T4e prqofalsoJ31l,ows th,at,ontwo different occasions, Jacob Harmon had ,deeds ml1de' to each of these oomplainants; of the , ... ' . , ' J'," lands he had put them,ip,pollsession of, respectively, hut fails to show that these deeds were ever delivered. Were this alone, it might be deemed suffiQient, especially. under l' decided by the court of Illinois, to sustain a decree .for the speciijc perforfllanceof this parol promise or agreement. to each of these,complainants. But the proof also shows that, at the time these cOmplainants took possession, they, each of them, took a written lease from Jacob Harrnou, signed by themselves and Jacob Harmon, agreed, only to pay rent, but to plant hedges, keep the premises in repair, and in many respects to d.o things with the idea that they were the .substantial owners Q'f .the Innd,subject only to Jllcob's ,rental during his life. The original lease tQe!lqh complainant ran fora term of two years, contained an Jacob M. Harmon to rel>lant and properly care fO,r.a bedge, and charge the Jacob Harone dollar per day fQr doing so, and to keep the fEmces and buildin repair; and the same, agre,ement was embodied.in .thEllease to Jeremiah the other cQulPlainant·. These, originalleases wereextend.ed, frool. totime,glm,erally for ,the .term of Jwo<;>r more years, uptilthe,lastd,ay of;ranullrl,1882, when anextenwas made to the 1st day of 1885.,' In October. these Je!lsl:ls were eftended by agreeme,nt m writingJor the term of t,wo years fro,In the 1st day of March,. 1885", This fQr extensi?n contains a provision that thE;!; less.eewill" and give up possession of said premises at the expiration ofahy one Year, in case the party of the,first part [lessor] should sell or convey all or any part of said laUds, or in
HARMON 'V. HARMON.
the event that either party should. die, or or in case the party of the secoud part [lessee] fail to pay all or any part of the yearly rents or interest, on or before the 1st day of Novem ber of anyone year." There was also the usual agreement to keep the premises in repair which had been incorporated in the original leases and extensions. It is urged in regard to this leade of October, 1884. that it never went into operation. But it was. nevertheless, a .col1tract in writing in regard to these lands, and in regard to the terms upon which these complainants occupied it, and operated to extend the former lease for the term of two years. It is also urged that Jacob's mind had become impaired by age and infirmities, so that these leases should not have the force and effect of contracts between him and the compl:Jinants. The fact, if it isa fact, that Jacob Harmon's mind became impaired by age is no defense, as against these written contracts, Jor these complainants. they being fully competent to make contracts and attend to their own business. Burnham v. Kidwell, 113 Ill. 425. The instruments might be voidable on the ground stated, as against Jacob HarmoJ;l, but they are operativ.e against the other parties, who were in full possession of their faculties; and. even if the earlier agreements between the parties in writing might possibly be reconciled with the parol agreement 8et up, which I do not think possible. yet there can be no doubt that all prior parol and written agreements were merged in the final agreement of October 31, 1884. This superseded everything that had gone before it, in relation to this land, and must stand as the contract between these complainants and Jacob Harmon at the time of his death. The complainants, then,are endeavoring to enforce a specific perlorrIlance of a COlJtract relating to lands, wholly by parol, and where the testimony shows they had made written contracts in relation to the same subject-matter. It seems to me that this impinges upou the general rule that"Whpn partips have delibl"rately put their engflgpments into writinJ\', in such terms a's Import a Il'gal obligation, without any uncertainty as to the object or extent of suehpngagement, it is conclinlivply presumed that th,' whille engagement of the partil's, and the extl'nt alld nlllnner of their ulldertakingo, was reduced to writing; lind lIll oral testimony of a previous colluqlli'um 1>etween th.. parties, or of conversatiolls or dedllrations at the time \\ 11('11 it was completl'd, or afterwards, as it would tend in lIIany instances to substitute a new anll diffl'rent cunlrilct for the olle which was rl"ally agl'l·ed upon. to the prejudice, possibly. of one of the parties; is rejected." 1 Green!. Ev. § ::!75. The reason for this rule is thus stated by Lord COKE: "It would be inf'onvenient that matters in writing', made hy advice and on consideration. and which fina:Iy imp"rt the certain truth of the agreement of theparties,s,hould 1>e controlled .1>y the avermellt of the parties, to be proved by, the testimony of slipPery memory; and It. would be danger(jus to purcbllser.s and all others in tluch cases if such nude avermellts ag;iinst malterin be admitted." Lord COKE, in Countes8of Rutlfmd's Case, 5'Coke.'26a. "If a wr,tten instrument is pf'rfect in itself, it must be the sole expositor iJlLeQtion of the pitl'lies to it, and 'parol proof of an agl'cemelltbetween
them, not reduced to writing, which is repugnant to the termsand:itltention expressed ill tbe written instrument, cannot be allowed." Grey's Heirs v. (Jrell'sAdm'r$, 22 Ala. 233, 237. In Forsyth v. Kimball, 91 lJ. S. 291, it was said: alleged to have been made at the time of the drawing, making, or indol'iling of a bill or note cannot be permitted to vary, qualify, or contradict, or add to or subtract from, the absolute terms of the written contract." ,
"It. is a firmly-settled principle that, parol evidence of any oral agreement
And in Harris v. Galbraith, 43 Ill. 309, the court said: "The. rule ls; where a contract .is reduced to writing, that the writing lI.ff'ords the only evidence of the terms and conditions of the contract. All antecedent and contemporaneous verbal agreements are merged in the written contracts. The law will not allow that an agreement may rest partly in writing and partly in parol; so that it is equally inadmissible to add to, take from, or specifically change the terms of a written agreement by parol." Further citations to+ the same effect might be mad'e, but these are enough. This rule stands as a sentinel over all written contracts to prevent them from being disturbed by the introducticm of parol testimony inconsistent bherewith. By the termS of the lease, these complainants assumed, the relation, under an agreement in writing, oJ tenants of Jacob Harmon; and if, at any time, they had refused to surrender the premises at the expiration of the leases, or, the extensions thereof, it would have been no defense to the complainants in an action for forcible detainer thll.!tJacob Harmon had made a parol contract at the time, or before the time of making these leases, inconsistent with the terms of the leases themselves. The leases, and the extensions of the leases, would have determined the rights of these parties in such a proceeding, and, as it 'seems to me, ,they must conclusively do so now. The record also shows that these complainants became indebted to Jacob Harmon on certain promissory notes, bearing interest at the rate annum, upon which notes suits have been brought by of 10 per.cent. the executors against the complainants, and jUdgments rendered in this court; and by these bills complainants seek to have these judgments set aside, or perpetually enjoined, by reason of the alleged parol agreement betweenthems.elves and ,.J.acob Harmon, at the ,time the notes were given, that, ifthey would pay him the interest regularly, which was reserved by the notes during his life, the notes should become inoperativeand void after his death, and should never be collected or enforced against them. I hardly need say that the relief upon this branch of the case is effectually barred by the rule I have cited in regard to the lands. The motes must be the evidenoe of the contract between the complainants a-nd Jacob Harmon, and not the parol agreement inconF01'syth v. KimbaU,91 U. S. 291. I may say, fursistent ther" that upon the trial of the suitsathtw, which were in this court, the defendll,nt offered evidence in defense of those suits that is now offered in suppqrt of that part of the bills for setting aside and enjoining the judgments;, and this court overruled the defense, and gave judgment upon thenotesi which judgment the supreme court of the United States
EDLElt V. CLARK.
affirmed. Harmon v. AdamlJ, 120 U. S. 363, 7 Sup. Ct. Rep. 553. For these reasons the bills of complaint in both cases are dismissed for want of equity.
(C1n'cuit Court, N. D. Illinois. March 1, 1892.)
Where a father and son make a settlement of the accounts between them, in pursuance of which the son gives his note for the balance found due from him, and such settlement is made a little more than a yeaI' after the transactions occurI'ed, and is afteI'wards reaffirmed by the son, such settlement should not be set aside after the father's death in the absence of any clear showing of fraud or mistake. Where land is conveyed by a deed absolute on its face, but in reality a mortgage, the mortgagee's interest in the land to the extent of his mortgage debt is superior
MORTGAGE-ll!IECRANIO'S LIEN-PRIORITIES-ExECUTION PURCRASER.
liens against the mortgagor.
to that of a pUI'chaser under sales made on subsequent judgments and mechanics'
In Equity. Bill by Frederick Edler against George Clark, executor of James Greenhaw, deceased, and Richard Greenhaw, and cross bill by Richard Greenhaw against Frederick Edler and George Clark, executor. The executor excepts to the master's report. M. Eo Loomis, for F. Edler. Cook & Upton, for R. Greenhaw. Hiram Cody, for Clark, executor.
BLODGETT, District Judge. The original bill in this case was filed by Edler to establish title to a farm of 265 acres of land in De Kalb county, in this state, as against the heirs at law and executors of James Greenhaw, ,deceased. The cross bill was filed by Richard Greenhaw to set aside certain liens held by the executor and heirs of James Greenhaw on said land, and also to have Edler declared to hold whatever title he holds in trust for Richard Greenhaw, subject only to the small amount of indebtedness from Richard to Edler. The case is now before the court for final hearing on exceptions by Clark, the executor, to the master's report. The essential facts necessary to be considered in passing upon these exceptions, and as they appear from the testimony, are these: In November, 1871, Richard GreenhaW, being then the owner of the farm in question, gave to his father, James Greenhaw, his note for $1,000, for money the father had advanced to him, and secured the payment thereof by a mortgage on 160 acres of the farm in question. There is no controversy between the parties as to the validity of this mortgage, the note drawing interest at the rate of 10 per cent. per annum. In Novrillber, 1874, Richard Greenhaw, having become deeply involved in dEbt, .conveyed his farm and his personal property to his father, with the un-