APPEAL from the Circuit Court of the United States for the Northern District of Illinois. The appellants were the heirs-at-law of G. W. Lee, and, on the strength of the title which they had inherited from him, and obtained in the Circuit Court just named, a judgment in ejectment against Dodge and others for a part of lot 4, block 53, of the city of Chicago. The defendants in that action set up a conveyance from Lee to Lois Cogswell, and showed by sundry mesne conveyances, they were in possession of the lot under that deed. It was, however, proved on the trial, that the deed to Lois Cogswell was left by Lee at his death among his papers, signed and acknowledged, but with a blank space where the name of the grantee should be; and that this was filled up with the name of Lois Cogswell, and delivery of the instrument made without authority, after G. W. Lee's death, by B. T. Lee, his administrator. As both parties claimed title under Lee, the plaintiffs of course had a verdict and judgment, and thereupon the defendants in that suit filed a bill in the same court for an injunction, and for a conveyance of the legal title. The case was thus: On the 4th May, 1836, Lee, who resided in the West, and was about to start on a tour from New York to Illinois, entered into a written agreement with Jonathan Cogswell, Lois Cogswell (sister to Jonathan), and F. S. Kinney, Esq. (a member of the bar), by which he agreed to invest in real estate ten thousand dollars furnished by the other three parties to the contract, in the proportion of $5000 by Jonathan Cogswell, $3000 by Lois Cogswell, and $2000 by Kinney. Lee agreed to pay to each of his partners one-half the sum advanced, with interest, within three years, and to give his personal attention to the business. The profits and losses were to be shared, one-half by him and the other half by the others. He was at liberty to make purchases to the amount of $40,000 partly on credit. The titles were in the first place to be taken in Lee's name, and he was afterwards to make such conveyances as the state of the venture required. Lee invested the ten thousand dollars as agreed, getting among other purchases six canal lots in Chicago, which were bought largely on credit. He also purchased for himself about the same time and in the same manner, lot 4, block 53, which was also a canal lot. He seems to have been engaged in various speculations about that time, and shortly after became much indebted and embarrassed. Not being able to pay his partners the half the money they had invested, when the three years elapsed, he confessed to J. Cogswell, for their joint benefit, a judgment for the $5000 and interest, Towards the close of 1841 he availed himself of a privilege allowed by the statute of Illinois, and consolidated his payments on the canal lots; that is to say, he concentrated all the payments which he had made on six lots, upon two and part of another, and thereby paid in full and obtained clear title for these, and relinquished his claim to the others. In doing this he made his own lot 4, block 53, one of those on which payments were consolidated, and thus became debtor to the partnership for about $1500, a little more than one-third the cost of that lot. On the 26th March, 1842, his health having been for some months broken down, he addressed a letter to Kinney, inclosing one to the Cogswells, dated the 20th of the same month from Mishwaukie, Illinois. In the letter to Cogswell, he makes a full statement of the transactions concerning the canal lots; says that he is not able to hold any part of the property, and would like to have some arrangement made by which he could give up his interest in all of it, and be released of his debt to them; and adds that he lives at such a distance from the property that other agents can attend to it at less expense than he can. In his letter to Kinney he says: 'I inclose a letter upon the subject of the canal lots, and you will see how it stands; but how to manage it without our being together I know not. As I am not able to own the property, and really, in the depressed feeling I am in, am not fit to take care or look after it, I would like them to take all and give up my note, I paying property enough to make them secure. For instance, the property to be all theirs, which is at one-third less than cost now. It will include $2172 of my own property. I will give, besides, the west fractional half of section 19, which ought to go with the east half, now owned by the company, $400. I will also (if they actually ask–it ought not to be required)–give all my school section lots in Chicago, worth $1500 cash now. I feel so much depressed and so unfit to take care of these matters that I will, if the whole matter can be settled, give up this property and have it off my mind, if the whole is asked.'This letter Kinney filed and preserved, as he did other letters of Lee; including letters between the date of the proposition and Lee's death. Lee himself, after lingering in disease and embarrassment for some months, died in November, 1842. What was done by Cogswell or by Kinney in the way of action upon these two letters of Lee was a chief point in issue. The defendants in the bill, who were in possession of the lot and who claimed it under the deed of the administrator, set up that the letter contained a proposition, and that this proposition had been accepted; that so there had been a contract; that the deed from the administrator had been in pursuance of that contract, and that no conveyance ought to be decreed. The complainants, Lee's heirs-at-law, on the other hand, denied that there was any contract; asserting that the letter of the 26th March was not a definite offer, but only a statement of what he, Lee, would be willing to do if the parties could meet personally and so 'manage' things; and asserting, moreover, that even such a plan as was suggested had never been responded to or accepted. The evidence on this last point, as it appeared on the one side and on the other, was thus:
The opinion of the court was delivered by: Mr. Justice Miller (stating the case) delivered the opinion of the court.
In favor of the idea that it had been accepted. Kinney testified that soon after receiving Lee's two letters, he had different conversations with Jonathan Cogswell and his sister, in which they agreed to accept Lee's offer; and that some six or eight weeks after the letter of Lee was written–he thought in the month of May–he wrote him a letter accepting, on behalf of himself and the Cogswells, the offer of Lee, without exacting the school section lots in Chicago; and he further stated that he thought that he received a letter from Lee acknowledging the receipt of this letter of acceptance. He also stated that he had promised Lee to go to Illinois that summer on this business.
Certain facts were relied on as confirming this testimony; as –
i. That Lee had left at his death a deed (found among his papers after that event) signed and acknowledged, but with a blank space where the name of the grantee should be, and that this deed was with another deed; a deed of the partnership lots.
ii. That there was found among Lee's papers a letter from Cogswell, dated October 18th, 1842; a long letter, detailing the pecuniary troubles of the writer, and expressing his desire to realize from the lands in which he had invested with Lee. He speaks of the lands which were conveyed to his sister, mentions the canal lots, and says if the deed has not been recorded that the name of the grantee should be changed, and they should be conveyed to him, and then directs that the deeds be recorded. But there was no specific mention of lot 4, now in controversy.
iii. Letters of Kinney also were found among Lee's papers, urging the conveyance, and recording of deeds for real estate.
The blank, as to the grantee's name, in the deed from Lee for the lot 4, was, as already mentioned, filled up by Lee's administrator, one B. T. Lee. Kinney, it appeared, went, in June, 1843, to Chicago, and had a full settlement with B. T. Lee, administrator of G. W. Lee, of an individual claim which he had against Lee's estate, and also of that of the partnership. In that settlement he received the deed already mentioned, of the lot in controversy, found among Lee's papers, and by his advice and with his knowledge the blanks in the deed were filled with the name of Lois Cogswell, and delivery made by B. T. Lee. These arrangements, Kinney testified, were made with the purpose of carrying out 'the contract,' and that B. T. Lee, the administrator, understood things in that way.
On the other hand, the testimony of Mr. Kinney was given twenty years after the date of the alleged transaction.
No letter of acceptance was produced from any source, nor any alleged copy of one.
A letter thus, from Kinney to Lee, dated July, 1842, was found among Lee's papers:'DEAR FRIEND LEE:
'The last letter I had the pleasure of receiving from you related to the lands in Chicago, &c. Dr. and Miss Cogswell had it for a time, and perhaps the former took it with him, as I am not able to find it at present. I will, therefore, defer saying anything in reply until I find the letter. It is, in fact, a difficult matter to say what is best to be done under the circumstances. . . . Your management of the matter was one great inducement to enter into it, and we might almost as well throw the whole away as attempt to manage it ourselves at this distance. My main object, however, in addressing you at this time is in regard to taxes, which I wish you to attend to, and see paid, on all the property we are jointly interested in.'
That the deed for the partnership property–found after Lee's death among his papers with the deed having the grantee's name in blank, for this canal lot 4, block 53, in controversy–was fully executed and only needed delivery.
As to B. T. Lee, the administrator's, understanding that a contract existed when Kinney went to Chicago, in June, 1843, and had a full settlement with him there, B. T. Lee himself testified that he had never at that time heard of a contract, and that none was spoken of during the settlement. Two full memoranda of agreement, showing the terms of settlement, relating the one to a personal claim of Kinney's against the estate, the other to the joint claim of Cogswell and himself, made no reference to any existing contract.
The conveyance of the legal title which is asked for by the bill filed in this suit is claimed on the ground of a contract, alleged to have been made in his lifetime by G. W. Lee; and the only question in the case is as to the truth of this allegation, which is fully ...