Anderson v. Anderson

• Decision Date: 06 June 1930
• Docket Number: No. 19860.,19860.
• Citation: Anderson v. Anderson, 339 Ill. 400, 171 N.E. 504 (Ill. 1930)
• Parties: ANDERSON v. ANDERSON.
• Court: Illinois Supreme Court

339 Ill. 400

171 N.E. 504

ANDERSON

v.ANDERSON.

No. 19860.

Supreme Court of Illinois.

April 17, 1930.

Rehearing Denied June 6, 1930.

Suit by Ruth Anderson against Arthur Anderson.From the decree, complainant appeals.

Affirmed in part, and reversed in part, and remanded, with directions.Appeal from Superior Court, Cook County; Joseph H. Fitch, judge.

Benjamin H. Ehrlich, of Chicago (Aaron H. Cohn, of Chicago, of counsel), for appellant.

Leo J. Hassenauer and Church, Haft, Robertson & Crowe, all of Chicago (Charles M. Haft, of Chicago, of counsel), for appellee.

DUNN, J.

The appellant, Ruth Anderson, filed a bill in the superior court of Cook county against Arthur Anderson, her husband, for the partition of seven tracts of real estate in the city of Chicago, which will be referred to in this opinion as tracts 1 to 7, as follows: Tract 1, being two lots in West Auburn subdivision, known as 7600 South Halsted street; tract 2, two lots in S. M. Bloss & Co.'s subdivision, known as 1334 West Seventy-Fourth street; tract 3, lot 48 in S. M. Bloss & Co.'s subdivision adjoining tract 2; tract 4, lot 19, block 2, in Skinner & Judd's subdivision, being 6451 Wentworth avenue; tract 5, lot 9 in Aurelia Stege's resubdivision, being 7526 South Peoria street; tract 6, lot 133, and part of lot 132 of Bierkhoff's addition, being 8478 Vincennes avenue; tract 7, lot 345, Center Avenue addition, being 58 South Racine avenue-all of which real estate except tract 5, which was improved with a two-flat building, was alleged to be improved with gas and oil filling stations and used in the conduct of the business of such stations, and all except tract 6 was incumbered with mortgages for various amounts.The bill alleged that the defendant owned the first two tracts at the time of his marriage, and was conducting a small amount of business on them; that the complainant and the defendant agreed that she should put $2,000 in the business and become an equal partner with the defendant; that she did put $2,000 in the business, and title to tracts 1 and 2 was placed in her and the defendant jointly; that the complainant thereupon took over the active management of the office work, taking charge of all the business being transacted and conducted, leaving the defendant to manage and conduct the hauling of gasoline and oils and wholesale business to other gasoline stations until the parties separated, June 15, 1928.The bill further alleged that the complainant and the defendant afterward acquired tract 4 and tract 7 as tenants in common and tracts 5 and 6 as joint tenants; that on June 15the defendant left the complainant, and has not lived with her since; that he has neglected the business and failed to pay creditors who are pressing the complainant for the payment of bills, which she is unable to pay because the defendant has drawn all money from the bank; that on July 16, 1927, the complainant and the defendant signed a note for $7,500 secured by trust deed, so that the defendant might from time to time withdraw up to the sum of $7,500 under a loan agreement, and that he has already drawn $5,000 for the purpose of applying that sum to the conduct of the business, but is diverting the same to his own use, annd has applied to his own use large sums of money from the receipts of the business greatly exceeding his proportion of the same.In addition to the prayer for partition, the bill prayed for a dissolution of the partnership, an accounting, an injunction, and the appointment of a receiver.

The defendant, Arthur Anderson, answered, admitting the marriage and his ownership at that time of tracts 1 and 2; denying the partnership or any agreement for one, or that complainant put $2,000 in the business or took over the management of the office work of the business.The answer denied that the complainant and the defendant are owners in joint tenancy of any of the real estate mentioned in the bill, and averred that the complainant conspired with one Roberts, who she knew was accustomed to advise the defendant in his business affairs, to induce him to advise the defendant that it would be necessary for him to place the real estate in the name of the complainant and the defendant as joint tenants in order to obtain a loan thereon, and that Roberts did accordingly advise the defendant, and the defendant did thereupon cause the title to the real estate described in the amended bill to be placed in the complainant and the defendant as joint tenants, but that the title so placed in the complainant was procured by fraud and circumvention, and was without any considerationwhatsoever, and was void and of no force and effect, as would appear more fully from a cross-bill which the defendant would presently file.The defendant then filed a cross-bill, in which he asked for a divorce on the ground of cruelty, and, among other things, alleged in regard to the real estate that shortly after the marriage his wife learned that he proposed to place a mortgage upon one of the pieces of property owned by him, and, knowing Roy P. Roberts was consulted by Arthur concerning his business affairs, entered into a conspiracy with Roberts to deprive Arthur of a half interest in all of his real estate and to procure the same for herself, and induced Roberts, in furtherance of the conspiracy, to represent to cross-complainant that he could not, so long as he was married, mortgage his real estate, unless he would cause it to be so conveyed as to be held in joint tenancy by him and the cross-defendant, and Roberts did accordingly advise Arthur, and he having confidence in Roberts, and not knowing the falsity of his representations, thereafter, and without any consideration moving to him, caused the title to be placed in the complainant and himself either in joint tenancy or tenancy in common, in and to all the property mentioned in the bill except tracts 3 and 5.The cross-bill further alleges that the cross-complainant did not intend to make his wife a gift of any interest in any of the properties mentioned, but caused the title to be placed as alleged for the sole purpose of enabling him to incumber said properties, and that therefore the title held by his wife is held, not in her own right, but solely as trustee for the use and benefit of the cross-complainant.The cross-bill further represents that the cross-complainant, desiring to expand his holdings, placed it within the power of Ruth to obtain his funds, to acquire title to tract 3, and without his knowledge or consent she acquired title thereto in her own name, and by reason thereof holds the title, not in her own right, but as trustee for the sole use and benefit of Arthur.

Carrie Olson by leave of the court filed an intervening petition, which, as afterward amended, alleged that she was the mother of Arthur Anderson; that Otto Olson, her son and half-brother of Arthur, furnished to Arthur the sum of $2,500 in payment for a half interest in tracts 1 and 2, which Arthur was then in the process of acquiring title to, and title to which he did thereafter acquire, with the understanding that Arthur would acquire and hold title thereto for the joint and equal interest of himself and Otto; that Otto died on May 30, 1923, leaving his mother, his father, Arthur, his half-brother, Luther Olson, his brother, and two sisters, his only heirs who, shortly after his death on June 10, 1929, assigned to the petitioner, Carrie Olson, all their interest in the estate of Otto, by reason of which she became the owner of an undivided half interest in the property.

Answers were filed by the original complainant to the cross-bill and the intervening petition.The cause was heard by the court and a decree rendered finding that no partnership ever existed between the complainant and Arthur Anderson; that, at the time of his marriage to Ruth, Arthur was the owner in fee simple of tract 1, and had contracted to buy tract 2, the title to which he acquired soon after his marriage, all subject to the rights of Otto Olson; that prior to August 15, 1923, Roy P. Roberts, president of the bank at which Arthur did his banking business, was applied to, as the representative of the bank, by Arthur for a loan upon his real estate; that Roberts fraudulently advised Arthur that a loan on the real estate would not be legal, unless he placed the title in himself and the complainant jointly, but that the evidence does not connect the complainant with fraud; that Arthur, believing Roberts' statement to be true, for the sole purpose of having the title to tracts 1 and 2 held by the complainant and himself jointly in order that a mortgage thereon might be legal and not intending to make a gift to the complainant of an interest in the property, caused those tracts to be conveyed to Leonard C. Mattson and by Mattson to Ruth and Arthur in joint tenancy; that at various times afterward Arthur purchased, out of funds that were entirely his own, tracts 4, 6, and 7, and, still believing Roberts' statement to him that title to the property must be in the joint names of complainant and himself in order that he might at any time thereafter obtain a loan thereon, he caused title to be taken in the joint names of the complainant and himself, but he did not intend to make a gift to the complainant of any interest in the property;that afterward, desiring to acquire an additional lot next to tract 2, Arthur requested the complainant to draw a check upon his bank account for a sufficient amount to acquire title to tract 3, but the complainant, without the knowledge or consent of Arthur, took title to the tract in her own name.

The court further found that Arthur had at all times, and with the full knowledge of the complainant, and without any objection on her part, used, occupied, and dealt with all the properties mentioned as his own, and that all the title which stands in the name of the complainant to all the property described is not held by the...