Biewer v. Mueller

• Decision Date: 05 June 1912
• Citation: 254 Ill. 315,98 N.E. 548
• Parties: BIEWER et al. v. MUELLER et al.
• Court: Illinois Supreme Court

254 Ill. 315

98 N.E. 548

BIEWER et al.

v.MUELLER et al.

Supreme Court of Illinois.

April 18, 1912.

Rehearing Denied June 5, 1912.

Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Suit by August Biewer and another against L. Robert Mueller and another, in which defendants file a cross-bill. From a decree granting the relief prayed for in the original bill and dismissing the cross-bill, defendants appeal. Modified and affirmed.Geeting, Potts & Van Dellen (Henry C. Geeting, of counsel), for appellants.

Matz, Fisher & Boyden, for appellees.

DUNN, J.

A bill was filed to set aside a deed for certain real estate in the city of Chicago and an assignment of rents, and an option to purchase dependent on such deeds. Answers and cross-bills were filed, a hearing was had, a decree was rendered granting the relief prayed for in the original bill and dismissing the cross-bills, and an appeal was taken.

A review of the decree requires an examination of the evidence, which is conflicting. The parties and witnesses contradict one another as to substantially every material part of the transaction capable of dispute. The following facts, however, are admitted or established:

In 1908, and for some years previous, August Biewer was the owner in fee simple, subject to a mortgage for $6,000, of lots 57 and 58 in a resubdivision of certain lots in Chicago. This property was situated at the northeast corner of North Clark street and Edgewater place, fronting 50 feet on North Clark street, was 125 feet deep, and upon it was a two-story building having two rooms on the lower floor, in one of which a saloon and in the other a poolroom was conducted. The upper floor consisted of living apartments. August Biewer also owned lots 59 and 60 in the original subdivision, which fronted on Edgewater place, and lay east of lots 57 and 58, from which they were separated by an alley. In January, 1908, L. Robert Mueller acquired the title, subject to a mortgage for $6,000, to lot 15 in Logansport, Ind., upon which was a three-story brick building used as a hotel. He also controlled the title to a quarter section of land in Anoka county, Minn., and certain lots in Minneapolis, which real estate was all mortgaged for more than its value. The hotel property at Logansport had belonged to a man named Johnson, and in December, 1907, had been sold under a foreclosure decree to the Michigan Mutual Life Insurance Company, and the time for redemption was about to expire. Negotiations for the purchase of the property by Mueller were begun through Meinshausen, who was a codefendant in the circuit court, and an extension of the time of redemption was obtained. The negotiations between Johnson and Mueller failed, and Mueller, having advanced $4,000 to the insurance company, then purchased the property from it. He put his brother-in-law, J. C. Hansen, in charge of the hotel as manager. On July 23, 1908, Johnson sued Mueller in Indiana for $12,000 damages on account of their dealings in regard to the hotel property, and asked to have the amount dealared a lien on the real estate. Through Meinshausen, who was a real estate dealer in Chicago, Biewer and Mueller were brought together on July 26, 1908, to negotiate a trade of Biewer's property for the hotel. Biewer and his wife, a few days later, went to Logansport to see the hotel, and after their return Biewer gave to Meinshausen written authority to trade lots 57 and 58, at a valuation of $35,000 to $32,500, for the hotel property, at a valuation of $25,000, and agreed to pay him $1,500 commission when the deal should be consummated. On the evening of August 26th Mueller and his wife, Meinshausen, and James M. Mayfield, who was a friend and confidant of Meinshausen and spent a great deal of time in his office, went to Biewer's place, having with them a deed, executed by James F. Tallman, conveying to Biewer the hotel property. Mueller had conveyed the property on July 30th to Tallman, who had no other connection with the matter than to take and hold title for Mueller and to convey at the latter's request. After a conference of several hours' duration between the persons named and Biewer and his wife, the latter executed and acknowledged before Mrs. Mueller, as a notary public, the deed in controversy, in which Tallman was named as grantee. Tallman's deed was delivered to Biewer, who was paid $6,000 in cash. An assignment of the rents of lots 57 and 58 to the amount of $1,500 was made to Meinshausen, and accepted by him in payment of his commission. There were also delivered to Biewer two deeds for the Minnesota property which has been mentioned. One, dated December 31, 1907, purported to be executed by the Columbia Finance Company, a corporation, and to convey certain lots in Minneapolis, Minn., subject to mortgages amounting to $2,900. The other, dated December 23, 1907, purported to be executed by the United Friends Church, a religious society, and to convey 160 acres of land in Anoka county, Minn., subject to a certain mortgage. No grantee was named in either of these deeds, the space for the grantee's name being left blank in each, and each contained a clause assuming the mortgage debt and agreeing to pay it as a part of the purchase money. Two days later Biewer went to Logansport to take possession of the hotel, but Hansen refused to surrender possession unless he should be paid $600. Biewer recorded his deed, but, being unable to obtain possession, telephoned to his wife in Chicago, and she refused to give possession of the property there. Biewer's deed to Tallman, besides lots 57 and 58, conveyed also the lots east of the alley, 59 and 60, and upon his return to Chicago Biewer claimed that they were inserted after the execution of the deed and were not included in the sale. Tallman, with Mueller's consent, reconveyed the latter two lots to Biewer. Biewer went back to Logansport with his lawyer, but Hansen continued to insist upon his claim and his refusal to give possession. Biewer refused to allow suit to be brought in his name for the possession. He learned early in September that the value of the Minnesota property was less than the amount of the liens against it. On October 6th Biewer tendered to Mueller and to Tallman a deed of the hotel property, $6,000, and the other deeds and papers he had received. The tender was refused, and on October 9, 1908, this suit was begun. Biewer has never been out of possession of his property, and has never had possession or exercised any ownership of the Logansport property.

It is the appellees' contention that the deed to Tallman was changed after its execution by adding the description of lots 59 and 60, or that the description was inserted in the deed without their knowledge prior to its execution and in violation of their agreement; that Mueller knowingly falsely represented that Hansen had no claim to the possession of the property and that he made none; that he was merely Mueller's manager, and that there was nothing which could interfere with Biewer's getting possession, and that Mueller agreed that he would put Biewer in possession of the hotel before Biewer should surrender possession of his property; that Mueller represented that the Johnson suit was without foundation and of no importance, and that as indemnity against it he would turn over the deeds to the Minnesota property, which he represented would be ample security against the Johnson claim, the property being worth $16,000 and the incumbrance on it only $4,000, while, as Mueller well knew, the deeds were no security at all, because, even if they had conveyed the title, the $4,000 incumbrance, which the grantee assumed, exceeded the value of the property, and the deeds would impose a liability instead of affording security. Biewer and Mueller squarely contradict one another as to lots 59 and 60. The former testifies that he told Mueller those lots were not in the deal, that it was only the saloon he wanted to sell; while the latter testifies that he told Biewer he would not think of buying the property without those two lots; that he considered them very essential as an accessory of the business. The authority given to Meinshausen by Biewer was to trade lots 57 and 58 only, and it was on the basis of that authority that the trade was made. No one but Mueller testifies to anything indicating that Biewer was trading more than the two lots. Meinshausen and Mayfield, who were present when the trade was closed, heard nothing of the other two lots and supposed the deed conveyed only lots 57 and 58. Tallman immediately conveyed them back when demand was made, and Mueller consented. While from the evidence it is exceedingly improbable that there was any blank in the deed when it was signed or that the description of lots...