Slater v. Gruger

• Decision Date: 19 January 1897
• Citation: 165 Ill. 329,46 N.E. 235
• Parties: SLATER et al. v. GRUGER et al.
• Court: Illinois Supreme Court

165 Ill. 329

46 N.E. 235

SLATER et al.

v.GRUGER et al.¹

Supreme Court of Illinois.

Jan. 19, 1897.

Appeal from superior court, Cook county; Theodore Brentano, Judge.

Bill by Ruth Gruger and others against Henry F. Slater and others for partition. There was a judgment for complainants, and defendants appeal. Reversed.Cope, Lemma & Treloar, for appellants.

Jesse Cox and Walther & Lanaghen, for appellees.

CARTWRIGHT, J.

The question in this case is whether a deed executed October 12, 1882, by Johan Bender and Mary Bender, his wife, to Katharine Slater and Henry F. Slater, her husband, conveyed the premises therein described to the grantees as tenants in common or as joint tenants. The controversy arose under the bill of appellees filed in the superior court of Cook county against appellants, for the partition of the land described in the deed and other lands about which there is no dispute. Appellees contended, and the superior court held, that the title was vested in Katharine Slater and Henry F. Slater, her husband, in fee simple, as tenants in common, and a decree for partition was entered in accordance with that conclusion. The following are the only portions of the deed material to this question. The parties to it are first described as ‘Johan Bender and Mary Bender, his wife, of the city of Chicago, in the county of Cook and state of Illinois, party of the first part, and Katharine Slater and Henry F. Slater, her husband, and the survivor of them, in his or her own right, of Chicago, in the county of Cook and state of Illinois, party of the second part.’ The granting clause is ‘unto said party of the second part, their heirs and assigns, forever.’ After the description of the premises is the following: ‘The conveyance herein is made to said grantee in joint tenancy;’ and the habendum is: ‘Unto the said party of the second part, their heirs and assigns, forever.’

The quality of survivorship, which is not an incident of a tenancy in common, but is the distinguishing feature of a joint tenancy, was mentioned in the description of the grantees as party of the second part; and immediately after the description of the premises it was declared that the conveyance was made to them in joint tenancy. The parties endeavored to create a joint tenancy; but it is insisted by appellees that they failed in that purpose by not complying with the requirements of the statute in their declaration as to the nature of the estate conveyed. The statute referred to is section 5 of ‘An act concerning conveyances' (1 Starr & C. Ann. St. p. 571), which is as follows: ‘No estate in joint tenancy, in any lands, tenements or hereditaments shall be held or claimed under any grant, devise or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees, (unless otherwise expressly declared as aforesaid,) shall be deemed to be in tenancy in common.’ The granting clause described the grantees by reference only, as ‘said party of the second part,’ previously defined in the deed. Appellees say that this must be taken to refer to the named parties, Katharine Slater and Henry F. Slater, her husband; and that the case of Baulos v. Ash, 19 Ill. 187, is conclusive on that question. They therefore insist that taking said parties so named, their heirs and assigns, to be the grantees, and considering that no words indicating a joint tenancy were used in the granting clause, a tenancy in common, in fee simple, passed by that clause. In the case referred to, it was held that the words in the description of the parties could not control the force of the words in the granting part of the deed. In that case the further description was inconsistent with the granting clause, both in respect to the grantee and the nature...