Opinion of the Court.

or unfairness on the part of Otis in procuring the quit-claim deed from Ranstead.

Whether the sale by Noble under the mortgage was valid, or voidable, or void, is a question not necessary to be decided. It was at least a sale at which Otis bought as a stranger, and in good faith, and as such purchaser he claimed the title in fee. For the sake, however, of removing all doubt as to his title, he agreed with Ranstead, if the latter would execute to him a quit-claim deed, he would give to Ranstead a contract entitling him to a conveyance upon the payment, within six months, of a little more than the amount expended by Otis. It is wholly incorrect to say that in this transaction Otis was abusing his power as a creditor or mortgagee. He was not acting in either capacity, and was in no position to dictate terms to Ranstead. If the sale under the mortgage was valid, he already had Ranstead's title, and the agreement to convey to him, upon the payment of $2500, within six months, was a simple act of kindness. If, on the other hand, the sale under the mortgage was invalid, Otis was rather at the mercy of Ranstead than Ranstead in the power of Otis. The mortgage sale could be set aside by Ranstead alone, if it could be set aside at all, and it was therefore at his election to insist either that his debt had been paid pro tanto by the sale, or that the sale was illegal and the property still subject to redemption. But it was only by the election of Ranstead that Otis could assume towards him the position of a creditor. He had no debt which he could enforce against Ranstead. He could merely remain quiescent, trusting to whatever title he had acquired under the mortgage sale, liable to lose his purchase money if the sale was wholly void, and if merely voidable, having only the right to claim, whenever Ranstead should file his bill, that he should be substituted to the equities of the mortgagee. We can discover in this position no means of oppression, and the record discloses neither threats, nor coercion, nor unfair advantage.

3-52ND ILL.

Opinion of the Court.

The transaction was not unreasonable. Neither party knew with certainty whether Ranstead's interest had been extinguished by the sale or not. In this uncertainty they agreed to definitely settle their rights in the premises, by the execution of the deed on the one side and the contract on the other. Although there was no monied consideration for this deed, it is incorrect to say it was made without any consideration. The consideration was the contract, which gave Ranstead a certain right of purchase on reasonable terms, in place of an uncertain right of redemption, to be attended with litigation and expense.

It is true, instruments of this character, when accompanied by a loan or executed to secure a debt, are regarded as amounting only to a mortgage. But this was not the object in the present instance. Ranstead voluntarily chose to exchange his doubtful position for a certain right to purchase, within a fixed time, if he should choose so to do. But he did not bind himself to do so. He incurred no debt to Otis. The transaction was not a loan of money with a deed taken as security. It has no marks of oppression, hard dealing or fraud, and is wholly unlike the case of Harbison v. Houghton, 41 Ills. 522, cited by plaintiff in error. It is more like the case of Taintor v. Keys, 43 Ills. 334, in which relief similar to that sought in this case, was refused by the court, although there was more reason for allowing the relief in that case than in the present.

Under his contract, Ranstead acquired rights which he might have asserted within a reasonable time in a court of equity. But when he voluntarily relinquished his position of mortgagor and released whatever equity of redemption he may have had in exchange for this agreement, he lost the right to appeal to the courts for aid in his original capacity as a mortgagor, and must rest upon the rights which he acquired under his new contract, voluntarily made, and perfectly reasonable in its terms. In Hilliard on Mortgages, third edition, page 80, the case of Endsworth v. Griffith is cited from 2d Abr. Eq. Cases,

Syllabus.

in which it was held that in a similar transaction as between the mortgagor and mortgagee, the right to redeem under the mortgage was gone, the mortgagee having entered for condition broken, and obtained a release of the equity of redemption for a further consideration, at the same time giving the mortgagor a promise to reconvey on payment of the whole money within a certain time. The case at bar is much stronger against the right of redemption, for the reasons already given. Here was no contract between the mortgagor and mortgagee, but between the mortgagor and a purchaser at the sale, claiming adversely to the mortgagor, acknowledging no right of redemption, exercising no power as a creditor, but merely entering into a reasonable contract, as a compromise of conflicting claims, and by its terms the parties must abide. Decree affirmed.

JAMES M. WANZER et al.

v.

S. EDWARD BRIGHT.

1. ILLEGAL ARREST-abuse of process-obtaining jurisdiction of the person by fraud. No court will take jurisdiction of a party where it is obtained by fraud; nor is a defendant amenable to process unless he is in, or comes voluntarily within, the territorial jurisdiction of the court. Even a valid and lawful act can not be accomplished by such unlawful means as enticing a party by fraud to come within the jurisdiction of the court so as to subject him to its process.

2. And where a party has been fraudulently induced to come within the jurisdiction of a court so as to render him or his property amenable to its process, he may have his action therefor.

3. So where a person residing in another State was induced to come into this State by certain creditors residing here, by the latter falsely representing to him, through a telegraphic dispatch and a letter, under another

52 35 46a 318

Syllabus. Opinion of the Court.

name, that the person whose name was so used desired to see him in Chicago, on a certain day, upon business not connected with the real object in view, which was to allure the party into this State for the purpose of arresting him under civil process, to compel the payment or securing of his debts, and when the party came within the jurisdiction of the courts of this State, in compliance with such request, he was arrested at the instance of the creditors, and imprisoned, it was held, that the creditors guilty of such fraudulent conduct and abuse of process, not only could not make them availing for the purpose intended, but were liable to an action at the suit of the party injured for the illegal arrest and imprisonment.

4. Nor would the fact that the false correspondence, by means of which the party was enticed within the jurisdiction of the court, was dictated by the attorney of the creditors in whose interest the fraud was perpetrated, at all exonerate those creditors from their liability to respond in damages, when they were previously consulted about it, and sanctioned the act, or at least afterwards approved of it, and sought to profit by it.

5. SAME-punitive damages recoverable. Such a fraudulent and outrageous abuse of the process of the court should be severely punished, and exemplary damages should be given.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Messrs. HURD, BOOTH & KREAMER, for the appellants.

Mr. A. C. STORY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of trespass on the case commenced by appellee in the Cook county circuit court, against appellants. Appellee claimed damages for an illegal arrest and imprisonment on process from the superior court of Chicago, at the suit of appellants. Also, for an illegal arrest at the suit of other parties, claimed to have been induced and procured by appellants.

It appears from the evidence in the case that appellee resided in Elkhorn, in the State of Wisconsin, and was engaged

Opinion of the Court.

in the commission business, and in the sale of agricultural implements. That appellants were engaged in the same character of business in the city of Chicago. That appellants had furnished him with implements for sale on commission, and there was an unsettled account between them, and appellants claimed that appellee owed them $500 on their

account.

Appellee claimed that he had invented an improvement in the construction of railroad car doors, for which he had obtained letters patent from the government. Appellants knew of this, and informed their attorneys of the fact; and they left their claim with them for collection, in February, 1867. On the 22d of April, 1867, an affidavit was prepared, signed and sworn to by Wanzer, and there was prepared, on the same day, and sent to appellee at his residence in Elkhorn, this dispatch:

To S. E. BRIGHT:

"CHICAGO, April 22, 1867.

Can you meet me at the Washington House on the twentysixth (26) inst. Answer. I want your patent car door. J. M. MANNING."

Appellee answered, declining to come to Chicago, but asked further particulars, whereupon the following letter was sent him:

S. E. BRIGHT, Elkhorn, Wisconsin:

"CHICAGO, May 5, 1867.

SIR-Your telegram in answer to mine was forwarded to me at St. Louis, as I had left this city before the same arrived. I am engaged in the construction and building of railroad stock for southern railroads. I have heard of your patent car door, and I would like to see you and model of your invention. I would call to see you at Elkhorn, but my business engagements will not allow me the time to do so. I will be at the Washington House, Chicago, on Friday, May 10th, 1867, when I would be pleased to meet you, if convenient. If you cannot