Baker v. Baker
| Decision Date | 22 May 1952 |
| Docket Number | No. 32201,32201 |
| Citation | 412 Ill. 511,107 N.E.2d 711 |
| Parties | BAKER v. BAKER. |
| Court | Illinois Supreme Court |
Sears & Streit, Aurora (Barnabas F. Sears, David H. Armstrong and Lloyd J. Tyler, Jr., Aurora, of counsel), for appellant.
Charles H. Atwell, Aurora (George H. Tinker, Aurora, of counsel), for appellee.
This case comes here to review a decree of the circuit court of Kane County adjudging and decreeing these parties to be tenants in common of certain real estate. Appellant, Shirley D. Baker, prays that the case be reversed and remanded with instructions to order the property reconveyed to him as sole owner, or, in the alternative, that the cause be reversed and remanded for a new trial as to the equitable ownership of the property. A freehold being involved, the appeal comes here directly.
In the fall of 1940, appellant, Shirley D. Baker, purchased the real estate involved in this proceeding, on which he erected a residence. This property is situated in the village of Montgomery in Kane County. At the time of the purchase, the legal title to this property was vested in Shirley D. Baker and his then wife, Dorothy P. Baker. Shirley and Dorothy P. Baker, mortgaged the property to the Home Building and Loan Association of Aurora, Illinois, to secure a loan. Dorothy P. Baker's name appeared on the records of the association as a mortgagor and on its loan account books, as well as on the tax bills. On April 30, 1943, Shirley D. Baker obtained a divorce from Dorothy P. Baker, the decree providing that such interest as Dorothy P. Baker may have had in said property became the property of Shirley D. Baker.
On May 13, 1943, Shirley D. Baker and the appellee, Winifred M. Baker, were married. When the tax lists were published in the newspaper in 1944, Winifred Baker discovered that Dorothy P. Baker's name appeared as title holder of this property. She discussed the matter with her husband, who told her he wanted to have the name removed. Shirley Baker thereafter contacted the Home Building and Loan Association with reference to removing his first wife's name from all records relating to the property. After several conversations relative to the property, the association drew up deeds whereby on March 8, 1944, Shirley D. Baker and Winifred M. Baker conveyed the property to one Dorothy Price, a spinster, who reconveyed the property to Shirley and Winifred Baker, in joint tenancy.
August 11, 1950, appellant filed suit for divorce charging adultery, and praying the court decree to appellant any interest that the appellee may have in this real estate. Appellee, Winifred M. Baker, answered and counterclaimed praying the court grant a divorce and decree that she was entitled to an undivided one-half interest in the real estate. Upon defendant's admission at the hearing, the court found she committed adultery on August 1, 1950. On this finding, a decree of divorce was granted plaintiff, and it was decreed that the real estate held by the parties as joint tenants during their marriage be thereafter held as tenants in common of an undivided one-half interest, finding that the conveyance in joint tenancy was not attended by any fraud, misrepresentation or coercion on behalf of Winifred Baker, but rather constituted a gift from Shirley to Winifred. Shirley Baker prosecutes this appeal from that part of the decree, only, which adjudged and decreed the parties to be tenants in common.
Shirley Baker contends that Winifred Baker had no equitable interest in the property; that no gift to her was ever intended, the joint tenancy deed being executed merely for the purpose of correcting the title and mortgage records with respect to the name of his wife; and that the conveyance was fraudulently obtained, it being executed by him believing defendant to be a true, kind, and affectionate wife, whereas she was not and did not intend to treat him as a true, kind, and affectionate wife at the time of the conveyance.
Provision is made in section 17 of the Divorce Act (Ill.Rev.Stat. 1951, chap. 40, par. 18,) that 'Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.' The mere circumstance that a husband purchased the property placed in joint tenancy with his wife does not make him the equitable owner of her interest. Property voluntarily conveyed by a husband to his wife, without fraud or coercion is presumed to be a gift, notwithstanding the fact the husband purchased the property with his own money, and the wife may hold the property against him. Bowman v. Pettersen, 410 Ill. 519, 102 N.E.2d 787; Lutticke v. Lutticke, 406 Ill. 181, 92 N.E.2d 754; Moneta v. Hoinacki, 394 Ill. 47, 67 N.E.2d 204; Nickoloff v. Nickoloff, 384 Ill. 377, 51 N.E.2d 565; Spina v. Spina, 372 Ill. 50, 22 N.E.2d 687. This presumption of fact is not conclusive but may be rebutted by proof. It can only be overcome by clear, convincing, and unmistakable evidence that no gift was intended. Lutticke v. Lutticke, 406 Ill. 181, 92 N.E.2d 754; Link v. Emrich, 346 Ill. 238, 178 N.E. 480. It is often said the presumption of gift is not to be frittered away by mere refinement.
There was absolutely no occasion for the execution of the conveyance in joint tenancy for the purpose of removing the former wife's name from the title. The decree granting Shirley Baker a divorce from Dorothy P. Baker had already accomplished this.
Appellant first alleged in his complaint that the conveyance in joint tenancy was made at the suggestion of the Home Building & Loan Association in order to secure a loan then pending. The evidence shows that no application for a loan was then pending, the property in fact being at that time mortgaged to the association for a loan made in 1940. In his answer to the counterclaim plaintiff alleged the property was placed in joint tenancy at the request of the association for the transfer of a loan and mortgage. In his amendment to his complaint, filed at the end of the trial, Shirley Baker alleged he inquired of the association what should be done to correct the record to conform to the true facts and the association then prepared the deeds of conveyance. The record discloses that Winifred Baker at no time requested her husband to convey the property to her in joint tenancy; that only Shirley Baker talked with the association concerning the transaction; and he claims they both requested the association to draw the deed. Title has stood in joint tenancy between Shirley and Winifred Baker for six years. At no time, until the filing of this divorce action, has Shirley Baker ever indicated that his wife was not intended to have an interest in the property. He professes that at the time of the conveyance he was unaware of the legal significance of a...
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