Clodfelter v. Van Fossan

• Decision Date: 21 May 1946
• Docket Number: No. 29344.,29344.
• Citation: 394 Ill. 29,67 N.E.2d 182
• Parties: CLODFELTER et al. v. VAN FOSSAN et al.
• Court: Illinois Supreme Court

394 Ill. 29

67 N.E.2d 182

CLODFELTER et al.

v.VAN FOSSAN et al.

No. 29344.

Supreme Court of Illinois.

May 21, 1946.

Appeal from Circuit Court, Wayne County; Blaine Huffman, Judge.

Suit by Marjorie Clodfelter and others against J. O. Van Fossan and another to have set aside and declared void certain deeds and instruments in writing executed by father, now deceased, and mother of the parties. From decree entered, the defendants appeal.

Reversed and remanded, with directions.Mills, Umfleet & Mills and Creighton & Kerr, all of Fairfield, for appellants.

Burgess, Loy & Burgess, of Fairfield, and Donovan D. McCarty, of Olney, for appellees.

GUNN, Justice.

Marjorie Clodfelter and others, hereinafter referred to as appellees, filed a suit in equity in the circuit court of Wayne county against J. O. Van Fossan and Harold Van Fossan, hereinafter referred to as appellants, in which they sought to set aside and have declared null and void certain deeds and instruments in writing executed by their father, Joe Van Fossan, Sr., hereinafter referred to as the father, and his wife, to appellants, which instruments were as follows: (1) A certain mineral deed dated August 15, 1936, conveying one half of the oil and other minerals under 222 acres to J. O. Van Fossan (appellant); (2) a warranty deed dated February 20, 1940, from the father and mother to appellants for 222 acres of land, subject to an oil lease and certain indebtedness; (3) a certain escrow agreement dated February 20, 1940, signed by the father and his wife and appellants; and to have the real estate described in these instruments decreed to be vested in the heirs-at-law of the father, now deceased. Upon a hearing in open court the chancellor denied all relief prayed by appellees, except that it decreed three certain mineral deeds executed by appellants, conveying to each appellee a one-tenth interest in the minerals under said land be delivered to appellees, and an accounting between appellees and appellants be rendered by a fixed date. Appellants appeal directly to this court as a freehold is involved. Appellees did not assign any cross error to the action of the trial court.

The facts are substantially as follows: The father owned 222 acres of land in Wayne county; on August 15, 1936, he and his wife executed an oil-and-gas lease on said premises to a party who assigned it to the Pure Oil Company. On the same day they executed and delivered to J. O. Van Fossan (appellant) a mineral deed to one half of the oil and minerals under said premises. The father was considerably indebted; there were two real-estate mortgages on the farm, aggregating $3981.75. He also owed his sons, J. O. Van Fossan and Harold Van Fossan (appellants) $2200. On February 20, 1940, a deed was prepared in which the father conveyed to appellants all of said land subject to the following: (1) The Pure Oil Company lease; (2) the J. O. Van Fossan mineral deed in one half of the minerals; (3) the two mortgages aggregating $3981.75, which the grantees agreed to pay; (4) a covenant that the grantees would care for and provide for the grantors, or the survivor, during their natural lives; (5) subject to the grantors reserving possession and use of the land during life. This deed was not presently delivered, but an escrow agreement was prepared at the same time between the father and mother and appellants. Appellees were not parties to the escrow agreement but were made beneficiaries, as pointed out hereafter. The father died May 24, 1940, shortly after the deed to appellants was delivered and recorded. Oil was produced in the spring of 1943, and appellees demanded of appellants a statement of the sums to be paid by them, which was the consideration to be paid by appellees for their mineral deeds, hereinafter referred to. Appellants refused to give this statement and suit followed. The mother of appellants is still living.

The so-called escrow agreement is rather unusual in character. It first relates to the agreement between the father and appellants, and recites the execution of the warranty deed by the father, with all of the conditions specified therein, as just noted, the consideration being ‘and for the further consideration that the parties of the second part (appellants) make and execute a good and sufficient mineral deed conveying to (appellees) each an undivided one-tenth (1/10) interest in all oil and gas lying in and under the said premises, to be delivered according to the provisions hereinafter contained.’ The agreement also recites appellants have made and executed the mineral deeds to appellees above described, subject to the oil leases, mortgages and life estate. The escrow agreement then provides the real estate deed to appellant and the mineral deeds to appellees are deposited with the First National Bank of Fairfield, Illinois, and the deed to the real estate is to be delivered to appellants upon the death of the father ‘if and upon the condition that the said parties of the second part have fully paid the mortgage indebtedness' of the father. The balance of the so-called escrow agreement refers to the three mineral deeds executed contemporaneously with the father's deed, the proper construction of which portion of the agreement is determinative of this suit. It is as follows:

‘It is further expressly understood and agreed that within one year from the death of the survivor of the parties of the first part, if he said Wallace V. Van Fossan, Enloa Van Fossan and Morjorie Clodfelter shall each pay to the parties of the second part, their heirs, administrators, or assigns, one fifth (1/5) of the Twenty-Two Hundred Dollars ($2200.00) consideration paid by the said parties of the second part to the parties of the first part for the conveyance to them of the real estate described in said real estate deed deposited herewith, and a one-fifth (1/5) part of all expenses that the parties of the second part have been to in the caring for and providing for the parties of the first part, as provided in said real estate deed, then the said Fairfield National Bank of Fairfield, Illinois, shall deliver to each of said parties, or to such of them as shall comply with this agreement, the mineral deed or mineral deeds herewith deposited with the Fairfield National Bank, said bank to deliver said mineral deeds if and when the said parties of the second part have submitted the total amount of their expenses in caring for and providing for the parties of the first part, and the said Wallace V. Van Fossan, Enola Van Fossan, and Marjorie Clodfelter, or such of them as comply with this agreement, have submitted satisfactory evidence that they have so paid their one-fifth part of said expenses in caring for and providing for the said parties of the first part. If the said Wallace V. Van Fossan, Enola Van Fossan and Marjorie Clodfelter do not each pay their one-fifth part of said expenses for caring for and providing for the said parties of the first part as herein provided, then said mineral deeds, or the mineral deed or deeds of such of said three who do not comply with this agreement in paying said one-fifth part of the care and support of the parties of the first part, are to be surrendered by the Fairfield National Bank of Fairfield, Illinois, to the parties of the second part in this contract, and are to be null and void and of no effect.’

The position of the appellants is that the circuit court entered a decree contrary to the provisions of this escrow agreement, and in so doing considered evidence which gave to the escrow agreement a meaning contrary to its plain and unambiguous terms, and that under such agreement the mineral deeds could not and would not be delivered until one year after the date of the death of the mother. The contention of appellees is necessarily confined to this issue since they did not prosecute a cross appeal nor assign cross errors as to the action of the court in sustaining the other transactions between appellants and their father. Ill.Sup.Ct. Rules Nos. 35 and 39.

We do not disagree with the contention of appellants that if the language of a contract is plain and unambiguous, oral testimony cannot be heard to contradict or vary its meaning or to give it a meaning inconsistent with the language used in the instrument. Domeyer v. O'Connell, 364 Ill. 467, 4 N.E.2d 830, 108 A.L.R. 476. The principle is well settled. Two questions, however, arise in this case which are not discussed by appellants: (1) As to the effect of an escrow agreement where the beneficiary or grantee is not a party to the contract; and (2) as to the intention of the father with respect to the effective date of the delivery of the mineral deeds, as disclosed by the provisions of the contract. These two propositions must be considered together, as we have held that deeds and contracts executed contemporaneously must be construed together. Grindle v. Grindle, 240 Ill. 143, 88 N.E. 473.

Appellants treat the contract as though there had been a direct transaction between them and the appellees, and every case cited by appellants, holding the title to property in escrow passes as of the time of the second delivery, is a case in which the controversy was between the two parties to the contract. This is not the situation in the instant case. At the time the escrow was made the father owned all of the property except one half of the mineral rights previously conveyed. He was selling his interest in the land for a money consideration and for the support of himself and his wife, retaining a life use of the property, and was in effect making a family settlement, which included a provision for his other children, the appellees. As a part of this agreement, the execution of these mineral deeds was an additional consideration for the...