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Milner v. Denman

OPINION FILED JANUARY 20, 1961.

GRACE MILNER, APPELLEE,

v.

WALTER W. DENMAN ET AL. — (JOHN C. BACON, APPELLANT.)



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM C. ATTEN, Judge, presiding.

MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

Plaintiff brought her suit in equity to set aside a sheriff's deed conveying plaintiff's real estate to defendant-appellant, John C. Bacon, and to give plaintiff the right to redeem from the execution sale under which said deed had been issued, after the period of redemption had expired. The sale had been had pursuant to execution and levy on transcript of judgment of the superior court of Cook County filed in the circuit court of Du Page County. Plaintiff's complaint was based on the alleged fraud and conspiracy of certain of the defendants, including the appellant. After a hearing on the merits, a decree was entered on the court's findings in favor of the plaintiff, from which decree the defendant John C. Bacon has taken this appeal.

Defendant Bacon contends that this action constitutes a collateral attack on a judgment of the superior court of Cook County; that no fraud or conspiracy has been shown; that mere inadequacy of sale price is insufficient to set aside an execution sale; and that he was a bona fide purchaser at the execution sale. Plaintiff, however, maintains that the record supports a decree permitting equitable redemption in the light of all the circumstances.

Much in the record before us is undisputed. Defendant Oscar W. Harman, an attorney practicing in the city of Chicago was retained by plaintiff, Grace Milner, in the early part of January, 1956, at the recommendation of defendant Walter W. Denman, to represent her in the Patrick estate then pending in the probate court of Cook County since 1952, and of which plaintiff was the sole legatee. Walter Denman was then a clerk in the superior court of Cook County.

On February 14, 1956, plaintiff received at the office of Harman a check for $13,244.79, being her distributive share under the estate, and at that time a discussion was had between plaintiff and Harman relative to fees.

On March 8, 1956, Harman filed a suit in the superior court of Cook County against Grace Milner for $900 attorney's fees for services in connection with the Patrick estate. Miss Milner was personally served at 1020 Wellington Avenue, Chicago, where she then resided. No appearance or answer was filed by Grace Milner and Harman defaulted her and proved up his judgment in said cause for $900 and costs.

No execution was issued from the superior court of Cook County, but a transcript of the judgment was duly filed in the circuit court of Du Page County, on April 17, 1956, by the said Oscar W. Harman, and docketed. Execution thereupon was issued on April 17, 1956, but pursuant to written instructions by Harman, Grace Milner was not served with the execution. The sheriff of Du Page County returned said execution May 22, 1956, satisfied in full by sheriff's sale had on the same date after first publishing and posting notice thereof as required by law.

The sale was attended by one Javaras, who bid the property in for $1012.35, on behalf of defendant John C. Bacon, and sheriff's certificate of sale was issued to Bacon. No redemption being made, the sheriff's deed then issued September 16, 1957, and was recorded in the recorder's office of Du Page County on September 18, 1957.

Plaintiff testified that in December of 1955, while in a Dr. Crawford's office in Chicago, she met the defendant Walter Denman, for the first time. In the conversation she discussed with Denman her difficulties in reference to the Patrick estate, which was pending in Cook County, in which estate she was the residuary legatee.

Defendant Denman told the plaintiff, "Well, you need a lawyer," and promised that he would find one for the plaintiff, and subsequently took the plaintiff to see the defendant Oscar Harman. This occurred in the early part of January, 1956. The plaintiff, Grace Milner, retained Harman to represent her in the Patrick estate. Also at that first meeting between the plaintiff and defendant Harman, plaintiff informed him that she was buying some business property in Du Page County under contract.

Defendant Oscar Harman filed his appearance in the Patrick estate in Cook County on January 9, 1956, and on February 17, 1956, the Patrick estate was closed, and there was delivered to the plaintiff, in Harman's office, a check for her interest in the amount of $13,244.79. Thereafter there was a discussion between Grace Milner and her attorney, Oscar Harman, in reference to the fees to be paid to Harman, the plaintiff testifying that Harman said something about $300, and then invited her to dinner. Defendant Harman drove the plaintiff to her home at 1020 Wellington Avenue, Chicago, where the plaintiff resided. The question of fees was not determined.

The plaintiff took her money and paid the balance of $9,580 due under the said contract of sale for the Du Page property for a total sale price of $14,300, and obtained title on February 24, 1956. This property in Du Page County was business property improved with a restaurant, with a monthly income of $125 per month. Grace Milner continued to collect the rents on this business property, collecting the rents through June of 1957, and made all payments for the upkeep and repairs of the premises, until September of 1957.

On March 8, 1956, twelve days after Grace Milner obtained the deed to her business property in Du Page County, defendant Oscar Harman filed suit for fees in the superior court of Cook County for the sum of $900. The complaint was drawn by the defendant Harman, and on the summons he directed the sheriff to serve Grace Milner at 1020 Wellington Avenue. The summons was served on the plaintiff on March 9, at that address.

Plaintiff testified that upon receipt of the summons, she took it to defendant Walter Denman, and asked him about it, and Denman informed her it was not legal because of the amount claimed, and advised the plaintiff to ignore it; that he, ...


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