37 Ill. 123

Wightman v. Hart

Decided April 15, 1865

Illinois Supreme Court · decided 1865-04-15

Writ or Error to the Superior Court of Chicago. This was' a suit in chancery, commenced in the Superior Court of Chicago, in October, 1862, by John Hart, against Q. A. Wightman, alias Charles W. Clapp, Albert Clapp, Frederick Kaehler, Charles Kaehler, Frederick Johnson and Marion Blanchard. The bill alleges that Charles W. Clapp, under the name of Wightman, and Edward Benton, as partners, became indebted to complainant. • That complainant recovered a judgment, by attachment, against them, in the Superior Court of Chicago; but that it was without service of process, and without seizure of any property belonging to them, and consequently no execution could issue. The bill alleges that Clapp absconded from Chicago in 1862,. for the purpose of defrauding his creditors and complainant. That Benton was insolvent, and left Chicago, and joined the army about the same time. * That said C. W. Clapp, on the 16th of December, 1861, under the false name of Wightman, sold to Frederick Johnson, the schooner Palmetto, receiving in return ten notes of $200 each, secured by mortgage on said vessel. That soon after, C. W. Clapp returned to Chicago secretly, and in disguise, and fraudulently, and without consideration, transferred said notes and mortgage to his brother, Albert Clapp, of Massachussetts, which notes are due and unpaid, and that Albert Clapp holds the same in trust for C. W. Clapp. It further alleges, on information and belief, that Albert Clapp knew that his brother, C. W. Clapp, absconded from Massachusetts, owing large amounts of money, for the purpose of delaying creditors, and charges that Albert Clapp knew C. W. Clapp assumed, at Chicago, the name of Wight-man, for the purposes of-fraud. That he knew C. W. Clapp absconded from Chicago December 16, 1861, owing money, and that said sale of said vessel was in contemplation of such absconding, and to defraud complainant; and knew such indebtedness was contracted under the name of Wightman. That previous to absconding from Chicago, C. W. Clapp, in January, 1862, sold the schooner Argo to Frederick Kaehler & Charles Kaehler, receiving therefor four notes of five hundred dollars each, dated January 18, 1862, and two of them secured by mortgage on said Argo; which notes were transferred at the same time, and under the same circumstances as the first named, to Albert Clapp, who holds them in trust for his brother, and are due and unpaid. That, on information and belief, charges a secret agreement between Albert Clapp and his brother to re-assign said notes and mortgages. Further, that in said attachment suit, garnishee process was served on Frederick Kaehler and Frederick Johnson, who, in answer to interrogatories, admitted the making of said notes and mortgages, and their readiness to pay, and that said notes and mortgages had been assigned to Albert Clapp, of which assignment they had notice. That they attached to their answers the affidavit of Albert Clapp, falsely setting forth said assignment was made in good faith and for a valuable consideration, and that he does not hold them in trust for C. W. Clapp. It alleges, that in consequence of the non-residence of Albert Clapp, a discovery of the true consideration of said assignment could not be had from him. It alleges that C. W. Clapp has property which complainant is unable to reach, and that complainant is not in collusion with C. W. Clapp. That Marvin Blanchard is the attorney for Albert Clapp and C. W. Clapp, and holds said notes and mortgages, and is informed and advised of all the circumstances of said transfer to Albert Clapp. It calls for the answers of the defendants, under oath. It prays that defendants be decreed to pay said Hart said judgment, interest and costs, and the costs of this suit. That so much of said notes and mortgages as is necessary be subjected to the payment of said judgment. And prays that defendants be prohibited from paying or collecting said notes and mortgages, or selling, assigning or disposing of the same. Prays that the assignment of said notes and mortgages, as against complainant, be decreed to be fraudulent and void ; for other relief and for an injunction against the defendants. The defendants answered the bill, and they severally admit, that complainant recovered the judgment in attachment against Wightman and Benton. That Kaehler and Johnson were garnisheed; and that they answered, admitting the execution of the mortgage; but denying any indebtedness to the defendants in that suit, or any property of defendant’s in their hands. That Charles W. Clapp did business in Chicago, as charged. That he sold the vessels, and took notes and mortgages, as charged in the bill. And ' the answers of Albert Clapp and Blanchard set up that the notes were assigned to Albert Clapp, in payment of indebtedness by Charles to him of $3,500, owing before Charles left Massachusetts. That Charles’ true name was Clapp, and not Wightman. They deny that Charles absconded from Massachusetts; and deny that he has any interest in the notes. That Albert Clapp only took the notes to obtain his pay. That only six of Johnson’s notes and only two of Xaehler’s were due when the judgment, in attachment, was" recovered. They deny all fraud. Johnson and Kaehler say they are uninformed whether Charles Clapp absconded from Massachusetts on account of his indebtedness. That they purchased the vessels in good faith, and know of no fraud in the transaction; and say they are ready to pay the notes. Charles W. Clapp: Admits in his answer that he left Massachusetts, and did business in Chicago in the name of Wight-man, and in partnership with Benton. He denies that he absconded from Massachusetts, or was insolvent, or that the sale of the vessel was fraudulent or made to delay creditors; or that Albert holds the notes in trust for him; or that he is a brother of Albert Clapp; and says that he was owing Albert when he left Massachusetts for money loaned him, and on account, the sum of $3,000, as alleged by Albert in his answer. Replications were filed to the answers of defendants. Lather Clapp says: That he knew but little of Charles for thirteen years previous to that time; that he had no dealings with him, and knew nothing of the circumstances attending his leaving Massachusetts, but thought it was sudden ; that he left one debt unpaid. He says he knows of no property of Albert Clapp. Peter Ham testified: That he knew Charles, and that he, the day before he left, promised to pay or secure witness the next day ; that he went to see him, but found he had left, and had no property there; that he owed witness $170, which was due; and he looked for property, but found none; witness knew him by the name of Wightman. Philip Seandlen says: He was mate of the Argo, in employ of Wightman, and afterwards captain of the Palmetto. I settled with him and took his note, and released the vessel; he promised to pay, but never did. Peter Abraham says : I was master of a vessel, and employed by Wightman; he gave me a deed to secure me for my services, and I discharged the vessel; he gave a note which was never paid. C. B. Southard testified: Knew a man by the name of Wight-man ; saw him in Boston, also in Chicago. Mary Nagley: Testified toWightman’s leaving Chicago, and he directed her that if any one inquired for him to say that he had gone East. J. Q. Hoyt: Knew him as Wightman; was intimate with him; learned that his name was not Wightman, and spoke to him about it: he said he would explain, but never did. W. F. Johnson: Knew Wightman in Massachusetts; that he met him in Chicago, and called him “ Charley:” he said he did not go by that name, and did not want any one to hear witness call him by that name; he told witness that he had difficulty with his wife; that he had left her, and did not intend ever to live with her again ; had failed in business, and owed some debts; that he had purchased the vessels; that they paid for themselves in 1860, and he had made $800. besides. Witness knew Albert Clapp in Boston, and he was in the mercantile business at that place when witness left the East; says he enquired at Salem, but could hear of no property belonging to Charles W. Clapp. This witness states that he was employed to go to Massachusetts to find witnesses as to Charles W. Clapp’s being there, and his insolvency, and was paid seventy-five dollars for the service. H.W. Chamberland ssljs : He saw Benton at Camp Douglas in reference to purchasing a note on him and Wightman, and he advised me not to purchase, as Wightman was to pay it, and I would never get it. James L. Campbell says : That he holds a note on Benton & Co. for $155; that he called on Benton for payment, when he said that he was worth nothing, and Wightman had taken all the money; had not been able to collect the note. B. F. Bayden says: That Charles left Massachusetts in 1860, secretly, and in debt; that he absconded, owing witness $250 lent money; the day he left, he sent me a bill of sale from ¡Newton, of his paint-mill and stock, with directions to sell it and pay myself, and pay overplus to his wife, also a note. The arrangement was, that I was to attach his property to prevent creditors from getting it, and save the surplus for his wife. I knew Albert, and he came to me with a letter, requesting me to claim $650. When I read it, I asked what what to do, and he said see a lawyer, and follow his advice. I gave the note to his wife.- I attached the property before he left. E. W. Eish says : He knew Charles, and he left Waltham secretly, and thinks he was considered largely in debt. I had three writs to attach property. He settled one on his return. I attached all of his property, so far as I could find it, and sold it. J3. F. Houion says : He knew Charles in Waltham in 1859, but did not know when or how he left, or whether he was insolvent. I cannot say as to Albert’s property, but he could or would not pay his bills. He owed me thirty dollars, and paid half of the amount. His reputation is, that he is insolvent. He may own property in Boston, and Salem, and I not know it, and might have loaned money. E. W. Wisewett says : He knew Charles and Albert Clapp. Charles lived in Waltham in 1859. He was considered solvent up to the time he left. Albert bought an old factory, and cut -it in two, and made two dwellings of it. He then worked at- pianoforte making. Houghton and Albert bad difficulty in settling. . Silas Stone says: He knows Albert, but is not acquainted with his condition as to property. He purchased a building and converted it into two dwellings, and afterwards traded one of them for a market shop in Boston. William P. Teriny says : He knew Albert and Charles Clapp. The latter made white lead in 1859 and in 1860 in, Waltham. He left in the spring of 1860. Does not know whether he was considered good. I do not know whether he absconded. He owed me $1000. He promised to consign me white lead, but gave up the business, and did not consign it. When I first knew Albert, he was in Boston, in the provision business, and I suppose he had some means, and never heard of his being insolvent. Charles Chamberlain says: He lives in Salem, and has known Albert ten years. He, at one time, owned a house in Salem worth about $1,700. Have heard of his owning property in Boston. I have never heard his credit questioned. William P. Penny says: My deposition has been taken at Boston. Albert was, so far as I knew, successful in business. Charles offered me fifty per cent, on my claim. When he left Massachusetts,. I did not understand that he owed any one but ifie, and should think that he then had means to pay his debts. J. M. Comis says: Charles Clapp boarded with him in Chicago; had no bad habits; and assumed name of Wight-man on account of family difficulty, and to prevent his wife from finding him. P. P. Aldrich says : He knew Charles in Worcester, Mass. Luther Clapp says: He thinks Albert owned real. estate most of the time for the last twenty years. He once owned land in Somerville, and traded it for a house in Boston. He owned a house in .Salem, and we did business together. He has always been solvent, and is so at present. He sold his house in Salem for $1,700, and his half of the business for $400. He also owned the half of a team worth $300, and half of the bills. I know he loaned money. A hearing was had in the court below, on the bill, answer, replications and proofs, and the court decreed: That the assignment from Q. A: Wightman to Albert Clapp of the ten notes made by Frederick Johnson for two hundred dollars each, dated December 16th, 1861, secured by mortgage on the schooner Palmetto, and also two notes made by Frederick Kaehler and Charles Kaehler for $500 each secured by mortgage on the schooner Argo, bearing date January 18th 1862, is fraudulent and void. That the injunction against said defendants, is made perpetual. That Frederick P. Kaehler and Charles E. Kaehler, and Frederick Johnson pay to the clerk of this court, the principal and interest due on said notes up to the day of service of garnishee process on them. That A. Clapp and M. Blanchard discharge said notes and mortgages and deliver them to the makers, and in default thereof the clerk shall deliver a copy of this decree to the makers which shall be a discharge of said notes, etc. That the clerk shall pay to complainant on said judgment’ his pro rata portion of said moneys. That complainant recover of C. W. Clapp and Albert Clapp his costs. To reverse that decree, defendants bring the cause to this court by writ of error, and assign a number of errors : 1. The court erred in not dissolving the injunction on the motion of plaintiffs in error. 2. The court erred in rendering a final decree on the motion to dissolve the injunction before the cause was ready for hearing; without an order setting the cause down for hearing; or closing proofs, and without notice to the plaintiffs in error, or either of them, or their attorneys. 3. The court erred in making said injunction perpetual. 4. The court erred in perpetually enjoining the payment of $4,000 and interest due from Johnson and Kaehler to-Albert Clapp and directing the sum of $3,000 to be paid to satisfy a claim of $1,523. 5. The court erred in decreeing the transfer of $3000 of said notes and mortgages to Albert Clapp fraudulent and void. 6. The court erred in decreeing the payment to John A. Hart of notes made by garnishees which were not due at the time judgment was rendered in said attachment suit. 7. The court erred in perpetually enjoining the payment of said ten notes made by Johnson, and said four notes made by F. & C. Kaehler, amounting to $4000 and interest, and admitted to be due and owing by them, and held and owned by Albert Clapp, without making any disposition of the same. 8. The court erred in not dissolving the injunction on the bill, answers and proofs, because the charges of fraud and secret trust are disproved. 9. Because the equity of the bill was fully denied, and those denials in the several answers fully sustained by the proof. i.0. Because the complainant had a complete remedy at j.aw. 11. Because the judgment in favor of John A. Hart was not evidence of a debt, and was not a foundation for a bill in equity. •

Good law ✅— No negative treatment on recordhow we know

Decided 1865-04-15

How this case has been cited

Cited by 12 later decisions — most recently March 1910

12 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Chief Justice Walker

¶1delivered the opinion of the court:

¶2The bill alleges, that defendant in error, in the month of October, 1862, recovered a judgment against Q. A. Wightman and Edward Benton, in an attachment suit in the Superior Court of Chicago. But, inasmuch as there was no service on the defendants, or levy on property, no execution could issue upon the judgment, against them. Also, that Wight-man’s real name was Charles W. Clapp, and that he and Benton had been engaged in the commission business in the city of Chicago, as partners, for about two years, before the commencement of the attachment suit. That in January, 1862, C. W. Clapp absconded, to defraud his creditors, and that Benton was insolvent and left the city about the same time. That C. W. Clapp,under the false name of Wightman, sold to one Johnson the schooner Palmetto, receiving therefor ten notes of $200 each, secured by a mortgage on the vessel.

¶3That soon afterwards, C. W. Clapp returned secretly to Chicago, and fraudulently and without consideration transferred the notes and mortgage to Albert Clapp. That the notes are due and unpaid, and that Albert holds them in trust for Charles. That Albert knew his nephew had absconded from Massachusetts, owing large sums of money, for the purpose of delaying creditors, and that Albert also knew that Charles assumed the name of Wightman for fraudulent purposes. And that he knew that he absconded from Chicago owing O ( O money, and the sale of the vessel was in contemplation of so absconding, to defraud defendant' in error.

¶4That he also sold to F. & C. Kaehler the schooner Argo, receiving therefor five notes of five hundred dollars each, two of which were secured by mortgage on that vessel, which were transferred, under the same circumstances, to Albert Clapp, who holds them in trust for Charles. And charges a secret agreement that Albert will reassign the notes and mortgages to C. W. Clapp, and that these notes are due and unpaid.

¶5It is further alleged, that in the attachment suit, garnishee process was served on F. Kaehler and Johnson, and that, to their answer, they attached an affidavit of Albert, stating that the assignment was made in good faith, and for a valuable consideration. That Blanchard, as attorney of Albert and C. W. Clapp, holds the notes, and is apprised of all the circumstances of the case. The bill requires answers under oath. Prays that defendants he decreed to pay complainant his judgment, interest and costs, out of the notes; that the assignment he canceled, and that the Clapps be enjoined from collecting the notes.

¶6Albert Clapp answered, admitting the sales of the vessels, the taking of the notes by Charles, and the recovery1 of the judgment in the attachment suit, as alleged. Also the assignment of the notes to him, but denies that it was fraudulent; and insists that it was done in good faith, and to secure bona fide indebtedness, due from Charles to him: Denies all fraud, and all the material allegations of the bill.

¶7The question ai’ises, whether the sworn answer of Albert " Clapp has been overcome by the evidence of two witnesses, or that of'one, and circumstances equal to the-testimony of another. A careful examination of complainant’s evidence shows that there is, we think, an entire want of direct or circumstancial evidence to show that the assignment was without consideration, or was fraudulent. ■ Hor does it show that Albert Clapp was insolvent, or of such limited means that Charles could not have been indebted to him. On the contrary, some of complainants’ witnesses speak of his having some property, and most of them say he was engaged in business on his own account, or for others, and none of them seem to know anything definitely of his means. On the other hand, his testimony shows that he had means. Some of his witnesses say he was successful in business, and that they never heard his'solvency questioned. It also appears that he owned a house in Boston, and another in Salem, and loaned money. The assignment of the notes is prima fade evidence that a eonsidetion was paid, and the complainants’ evidence, we think, fails to overcome it, and the sworn answer, and defendant’s evidence, which seems to support the transaction as fair.

¶8It is true that the evidence shows that Charles W. Clapp left Massachussets in debt, and without the knowledge of his creditors. That he left Chicago in the same manner, and and it may be reasonably inferred that he was insolvent at both places. But we are at a loss to perceive how this proves the transaction fraudulent, or that Albert Clapp, his uncle, had no claims against him. For aught that appears, the debt to his uncle may have been a portion of the debts that rendered him insolvent. Albert swears that he was indebted to him at the time, and to satisfy which, the assignment was made, and we find no positive evidence that it was not true, and we think the circumstances fail to show that he did not owe him. For does the fact, that Albert and Charles were relatives, prove fraud. It may be a circumstance to excite suspicion, but, of itself, is not prooffcnor do we think, in connection with other circumstances, that it overcomes the sworn answer responsive to the allegations of the bill. The decree of the court below must, therefore, be reversed and the cause remanded.

¶9Decree reversed.