Bruin v. Bruin

• Decision Date: 16 June 1966
• Docket Number: Gen. No. 50746
• Citation: 219 N.E.2d 68,72 Ill.App.2d 51
• Parties: Lorine BRUIN, Plaintiff-Appellee, v. Peter BRUIN and Unknown Owners, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 68

219 N.E.2d 68

72 Ill.App.2d 51

Lorine BRUIN, Plaintiff-Appellee, v. Peter BRUIN and Unknown Owners, Defendant-Appellant.

Gen. No. 50746.

Appellate Court of Illinois, First District, Third Division.

June 16, 1966.

John M. Van Der Aa, South Holland, Byron S. Matthews, Thomas A. Matthews, Chicago, for appellant.

Piacenti & Cifelli, Chicago Heights, for appellee.

SULLIVAN, Presiding Justice.

This is an appeal taken by the defendant from a final order of the circuit court of Cook County in a partition proceeding which found that the plaintiff was the owner of an undivided one-half interest in certain real estate and directing that the property be partitioned. The matter was referred by the court to a master in chancery who, upon the termination of his tenure as a master, was appointed by the court as a special commissioner to proceed and file a report with the court.

The defendant raises and argues only one point in his brief. He contends that the conveyance of the subject property into joint tenancy was made by the defendant, Peter Bruin, not as a gift, but to obtain a mortgage loan and to avoid a foreclosure suit, and that the evidence in the case is clear that the property in question was not conveyed by Peter Bruin to his then wife as a gift or advancement.

The facts are these: Lorine Bruin, the plaintiff, testified that she married Peter Bruin in Crown Point, Indiana, in 1929 and was divorced from him in April, 1961. Five children were born of the marriage. In the latter part of January, 1942, the family moved to the property involved, which is located at 151 East 168th Street in South Holland, Illinois. Prior to that time the defendant's father, Cornelius Bruin, lived upon the premises. Prior to January, 1942, the four brothers and sisters of the defendant and the defendant had an interest in the property, together with the father, Cornelius Bruin. In October, 1941, Herman Bruin, one of the brothers of the defendant, came to the home of the parties in Glenwood, Illinois, and asked Peter Bruin, the defendant, if he would be interested in taking care of the property, which was going to be sold for delinquent taxes. He also stated to the defendant that if the defendant would take care of the property, and the plaintiff and the defendant would take care of the defendant's father for the remainder of his life, the defendant's brothers and sisters would sign their shares over to the defendant. The plaintiff agreed to this arrangement, and at that time accompanied the defendant to the office of Mr. Van Der Aa, where the parties agreed to make 'some kind of payments' on the house. At that time and place the defendant told the plaintiff that the property would be in her name when it was all straightened out. The testimony further indicated that the defendant had said, 'When it was settled, when it was all straightened out, I would be in joint tenancy. My husband told me that all the time.' The property involved is an eight-room farm house, two-story residence. The father of the defendant lived with the defendant and the plaintiff, and the plaintiff took care of him for nine years until he died in about March, 1951. Plaintiff washed for him and fed him and took care of him. The title to the property, pursuant to the agreement entered into between the brothers and sisters of the defendant, was quitclaimed to Peter Bruin subject to a life estate, in Cornelius Bruin, the father.

The plaintiff testified that in December, 1951, she accompanied her husband to Mr. Van Der Aa's office. At that time Mr. Van Der Aa explained to her that the property was in joint tenancy and that she owned one-half of the property. She further testified that she had talked to her husband hundreds of times about the property and about the fact that neither could sell the property until both signed together, and that her husband, in February, 1960, told her he realized that she had a half interest in the property. The children of the parties hereto were present on these occasions. A Torrens certificate of title to the property in question was admitted in evidence reflecting ownership in joint tenancy by Peter Bruin and Lorine Bruin, the parties hereto.

Mrs. Lois Roberts, a daughter of the parties, testified that she was present in the home of the parties in February, 1960, at which time the parties hereto had an argument because her sister, Joyce, was married without the approval of the defendant, her father. The witness testified, 'Then mom said if he was through, she had her half of the property. He said he knew she was entitled to it, but he didn't want to sell it right now.'

Joyce Zoeteman, another daughter of the parties, testified that prior to her marriage she had lived with her family in the property in question. She corroborated plaintiff's testimony regarding her grandfather living with them until his death, and that her mother took care of him. She testified to a conversation which took place in her presence and in the presence of her then boy friend and present husband. The father said to her mother, 'I know it's half your property, but I don't want him in the yard.'

Mr. John J. Van Der Aa testified for the defendant. He stated that he was a real estate appraiser and had a mortgage on the farm property in question. At the time he made the original loan he did not give a thought to Mrs. Bruin being made a joint tenant in the property in order to secure the loan. He also stated that he would not have demanded that she become a joint tenant and execute the mortgage papers along with her husband.

The next witness for the defendant was William Staat, President of the First National Bank in Dolton. He first met the defendant when the defendant came to the bank to refinance a mortgage he had on the property. He suggested that the defendant put the property in joint tenancy with his wife. He further testified that it was not an absolute policy of the bank that both parties sign the papers, although that would be preferred. This witness testified that he 'believed' that a conveyance of the property into joint tenancy with Mrs. Bruin was discussed at the time they signed the papers. It might be mentioned in this connection that both the plaintiff and the defendant testified that Mrs. Bruin, the plaintiff, did not go to the bank and Mrs. Bruin testified that she never saw Mr. Staat in her life until he walked into the hearing room. The uncontradicted testimony of both the plaintiff and defendant is that the papers were brought from the bank to the home for Mrs. Bruin's signature. Mr. Staat merely testified in answer to a question if he ever discussed the conveyance (into joint tenancy before the loan was made) with Mrs. Bruin, 'I believe I did.'

The defendant testified that he went to the bank in Dolton in order to obtain a loan on the property and that Mr. Staat consented to make the loan and 'recommended that both names be on the title to obtain this mortgage loan.' That the property was then placed in joint tenancy with his wife. He took the papers home from Mr. Staat to Mrs. Bruin for the signing, as she was never in Mr. Staat's office. The defendant admitted that the plaintiff had cared for his father until the time of the father's death. When the defendant was asked whether he had told his wife that he was aware of the fact that...