Cohn v. Litwin

• Decision Date: 25 June 1941
• Docket Number: Gen. No. 41657.
• Citation: 35 N.E.2d 410,311 Ill.App. 55
• Parties: COHN v. LITWIN.
• Court: United States Appellate Court of Illinois

311 Ill.App. 55

35 N.E.2d 410

COHN

v.LITWIN.

Gen. No. 41657.

Appellate Court of Illinois, First District, Third Division.

June 25, 1941.

Appeal from Municipal Court of Chicago; Charles S. Dougherty, Judge.

Forcible entry and detainer action by Victor Cohn against Rose Litwin. From a judgment for possession in favor of plaintiff, defendant appeals.

Reversed. Joseph F. Elward, of Chicago (Raymond F. McNally, Jr., of Chicago, of counsel), for appellant.

McInerney, Epstein & Arvey, of Chicago (George L. Siegel, of Chicago, of counsel), for appellee.

HEBEL, Justice.

This is an appeal by the defendant, Rose Litwin, from a final judgment for possession, entered in a forcible entry and detainer action, in favor of Victor Cohn, plaintiff, of the premises at 4217 South Maplewood Avenue, Chicago, and legally described as follows: Lots 28 and 29 in Block 3 of Phare & Sackett's Subdivision of the North 12 acres of the South 32 acres of the East Half of the North East Quarter of Section 1, Township 38 North, Range 13 East of the Third Principal Merdian, in Cook County, Illinois. From the record in the case, it appears that foreclosure proceedings were filed on September 21, 1933, in the Superior Court of Cook County, by Anton Litwin and Agnes Litwin to foreclose a $4,500 mortgage. The foreclosure decree entered on January 30, 1937, found there was due to Anton Litwin the sum of $5,790.68 plus other sums for attorney's fees, expenses and costs, and directed the sale of the premises to satisfy the indebtedness. The decree contained the usual provisions that if the premises are not redeemed, a master's deed shall issue to the holder of the certificate of sale; that upon the execution of the deed the grantee be let in possession of the premises, and that any of the parties to the cause who may be in possession of the premises and any person who since the commencement of the suit shall have come into possession under them, or either of them, shall surrender possession to said grantee. On June 21, 1938, the defendant filed her petition alleging an assignment of the certificate of sale by Anton Litwin, and praying that the Special Commissioner be ordered to issue his deed to her. To this petition Anton Litwin filed an amended answer and a cross-petition alleging that the assignment had been procured through the deceit and fraud of the defendant, and praying that the assignment be set aside and that the Special Commissioner issue the deed to him. On February 19, 1940, the Superior Court entered an order whereby the assignment of the certificate of sale was set aside, and a master in chancery was ordered to issue his deed to Anton Litwin or his assignee.

Subsequent to the decree of foreclosure, the Special Commissioner's sale was held on February 25, 1937, and Anton Litwin purchased the property and acquired the certificate of sale. On April 3, 1937, the Special Commissioner's Report of Sale was approved and filed. The defendant filed her petition on June 21, 1938, in which she alleged: That the Special Commissioner's certificate of sale, which had been issued to Anton Litwin on February 25, 1937, had been assigned to her on April 14, 1937; and that on May 26, 1938 (after the expiration of the period of redemption), she had presented the certificate and assignment attached thereto to the Special Commissioner, who had refused to issue his deed to her. The prayer of the petition was that the Special Commissioner be ordered to issue his deed to her.

Anton Litwin, husband of the defendant, filed his amended answer to the petition, in which he alleged that the assignment had been executed by him through fraud in the inducement; the amended answer prayed that the certificate of sale be turned over to him and for an accounting of rents. He also filed a cross-petition praying for the removal of a certain affidavit as a cloud on the title, for an accounting, and that the assignment be set aside and that the Special Commissioner issue the deed to him. The Registrar of Titles of Cook County was made a party to the proceedings.

On February 19, 1940, the Superior Court of Cook County entered its final order whereby the certificate of sale was ordered returned to Anton Litwin, the assignment was set aside and a Master in Chancery was ordered to issue his deed to the premises to Anton Litwin or to his assignee, and the defendant, Rose Litwin, was ordered to account to Anton Litwin. The defendant, Rose Litwin, appealed from this final order direct to the Supreme Court and that court (in the case of Litwin v. Litwin, 375 Ill. 90, 30 N.E.2d 619, 620) said--upon the contention that the court was without jurisdiction for the reason that a freehold was not involved--in its opinion: “* * * The rule is that a freehold is involved where the necessary result of the decree is that one party gains and another loses a freehold or the title is put in issue by the pleadings so that determination of the case decides that issue. Hursen v. Hursen, 209 Ill. 466, 70 N.E. 904;Harper v. Sallee, 372 Ill. 199, 23 N.E.2d 27. Here, the controversy involves a master's certificate on which the period of redemption expired before this proceeding was instituted. The petition prayed that a deed be issued to appellant and the order of the trial court directed that a deed be issued to appellee. Therefore, the necessary result of the suit is that one of the parties will get title to the premises to the exclusion of the other. It is true that a master's certificate does not convey title to the purchaser and only confers a right to obtain a title subject to redemption (Kronenberger v. Heinemann, 190 Ill. 17, 60 N.E. 64;Allison v. White, 285 Ill. 311, 120 N.E. 809), but more than mere ownership of the certificate is involved here. The period of redemption has expired and the right to obtain title subject to redemption has ripened into an absolute right to a deed. A freehold is involved.” The court there further said: “Appellant contends the court below erred in affirming the master's report which included a finding that the assignment of the certificate of sale was procured by fraud. She claims there was a valuable consideration for the assignment, namely, the promise to pay and actual payment of taxes on the property and the master's fees in the foreclosure proceedings. Appellant testified she negotiated a loan from her son and used the money for the tax payments and master's fees. Some of the largest payments were made before she claims to have received such money. The evidence tends to show that the money for these expenses came from her husband's earnings, since she had no other source of income during this period. Moreover, appellant says the assignment was made by her husband because he had no money to pay the charges. Yet the evidence shows he was working during this time and earning $60 to $75 per week. Her son testified the loan was made from his safety deposit box during the month of April, 1937. The bank records show that he had not been to his box during April, and his testimony varies from that of appellant as to the time and amount of the loans. The evidence on behalf of appellant as to consideration does not support her claim. The argument that the assignment by her husband was a gift to appellant, besides being inconsistent with the claim that consideration was given, is not supported by any evidence.” The court then passes upon and finds that the determination of the chancellor that the assignment of the certificate of sale was procured by fraud on the part of appellant is well supported by the evidence. The court there further said: “Appellant contends that the court below erred in affirming that part of the master's report which found for appellee on the charge of fraud and no consideration for the assignment of one-half interest in the trust deed in 1936. In her bill for separate maintenance, appellant alleged her husband owed her $1000, life savings which he borrowed from her, and that he had deserted her. On cross-examination she admitted the allegation as to the money was false. Appellee testified ‘she kicked me out from the home.’ His testimony was not contradicted. There is nothing in the record which tends to show appellant had any ground for separating from her husband or for separate maintenance. Therefore, when promising to resume her marital status, she was merely promising to do what she was already in duty bound to do. A promise of that kind was not a sufficient consideration for the assignment. Smith v. Gray, 316 Ill. 488, 147 N.E. 459;Goldsborough v. Gable, 140 Ill. 269, 29 N.E. 722,15 L.R.A. 294. While dismissing a suit or surrendering a claim is good consideration for a promise or an act, the suit or claim must be entertained in good faith. Dougherty v. Duckels, 303 Ill. 490, 135 N.E. 737;Janci v. Cerny, 287 Ill. 359, 122 N.E. 507. Appellant did not meet the issue of no consideration or the claim of fraud. She made no claim that it was a gift, and cannot in this court, for the first time, claim the assignment was a gift.” The court then in passing upon the questions affirmed the order of the Superior Court except to modify the order by striking therefrom the sum of $403.65 as master's fees and inserting the sum of $103.65 in lieu thereof.

It appears from the record before this court that on July 8, 1940, the master's deed was issued to the plaintiff, Victor Cohn, as assignee of Anton Litwin. On August 22, 1940, an original Torrens certificate issued in the name of the plaintiff. Subsequently, on September 19, 1940, the plaintiff caused to be served a demand for possession of the premises upon the defendant.

It further appears from the facts as they are in this record that plaintiff was the nephew of J. S. Cook and that Mr. Cook and his associate, Mr. Joseph Bergman, had been attorneys for Anton Litwin in the Superior Court foreclosure case, and also in a divorce case filed by Anton Litwin against the defendant, Rose Litwin....