O'Connell v. O'Conor

• Decision Date: 19 June 1901
• Citation: 60 N.E. 1063,191 Ill. 215
• Parties: O'CONNELL v. O'CONOR.
• Court: Illinois Supreme Court

191 Ill. 215

60 N.E. 1063

O'CONNELL

v.O'CONOR.

Supreme Court of Illinois.

June 19, 1901.

Appeal from circuit court, La Salle county; Charles Blanchard, Judge.

Suit by Martin A. O'Conor against Dennis O'Connell and others. From a decree for plaintiff, defendant O'Connell appeals. Reversed.

James J. Conway and Brewer & Strawn, for appellant.

Duncan & Doyle, for appellee.

BOGGS, J.

This was a bill in chancery exhibited in the circuit court of La Salle county by the appellee, Martin O'Conor, against the appellant and against other persons who are not parties to this appeal. The bill alleged that the complainant, Martin A. O'Conor (appellee here), stood seised of the title in fee to lot No. 6, block 116, in the city of La Salle; that the appellant had caused to be recorded a deed from the master in chancery of said La Salle county purporting to convey to him (the appellant) the said lot in pursuance of a sale made under a decree of foreclosure entered in the La Salle circuit court, but that said master's deed conveyed no title whatever, and was a cloud on appellee's title. The bill prayed for a decree canceling said master's deed as a cloud on the title of the appellee. The parties to the bill, other than the appellant, were defaulted. He filed an answer, and on a hearing a decree was entered in accordance with the prayer of the bill, and appellant has perfected this appeal to bring the decree in review in this court.

The decree appealed from recites as the finding of fact relative to the title of the appellee (complainant below) that one Ellen O'Conor, mother of appellee, entered into actual possession of the lot in question in July, 1874, under the claim that she was the owner thereof, and continued in the open, adverse, notorious, exclusive, and continuous possession thereof for a period of more than 20 years, and thereby became the owner of the title to the lot in fee simple, and after the expiration of said period conveyed the lot to the appellee, and delivered to him the possession thereof. Ellen O'Conor, whose possession of the said lot is relied on to establish the title of appellee thereto, was the wife of Michael O'Conor, now deceased. In 1874 (the date of the beginning of the alleged period of 20 years' possession aforesaid) the family consisted of the husband, Michael O'Conor, the wife, said Ellen O'Conor, and three sons and a daughter, namely, Martin (the appellee), Thomas, Patrick J., and Mary Ann (now Keegan). The family had previously lived on a farm near La Salle, and in 1874 a house was built on the lot, which was occupied by the family as a residence. Michael O'Conor lived there with his wife and their children, including the appellee, until his death, which occurred in 1885. The position of the appellee is that the lot was vacant and unoccupied in 1874, and that the wife then took possession of it, and had the dwelling house built upon it out of her own means, and that, though the husband and wife and their sons and daughter resided in the property, the possession and control of the property were exclusively in the wife, and that she claimed to be the owner thereof. In 1868, some six years prior to the construction of the house on the lot, one Appleton R. Hillyer obtained a tax deed for the lot. Whether he had other claim of title does not appear. In 1880 Hillyer conveyed such title or interest as he had to Mary A. O'Conor (now Keegan), a daughter of said Ellen O'Conor, and who then resided with said Michael and Ellen, her father and mother, in the family home on the lot. Mary A. held the title so acquired until 1882, when she conveyed it to Patrick J. O'Conor, her brother, an unmarried man of mature years, who also resided in the home with his father, Michael, and his mother, said Ellen, and his brothers, the appellee and said Thomas. In May, 1884, Patrick J. mortgaged the lot to one John O'Connell, Sr., father of the appellant, to secure a note in the sum of $250; and in October, 1884, Patrick J., who still resided in the same house with his father and mother and the appellee, on said lot, executed a deed to said Ellen O'Conor, his mother, purporting to convey the title to her. This deed contained a condition hereinafter set forth. The mortgage to said John O'Connell, Sr., father of appellant, and the deed to said Ellen O'Conor, were duly recorded in order as they bore date, respectively. A decree of foreclosure, to which said Patrick J. and said Ellen O'Conor were parties, was entered on this mortgage in the circuit court of La Salle county; and the appellant, Dennis O'Connell, purchased the lot at the sale made by the master in chancery in pursuance of the decree, and, in default of redemption, received a deed for the lot from the master. The decree in the case at bar, now brought under consideration by this appeal, orders this master's deed be canceled of record, and that it be for naught esteemed.

When the mortgage was executed by Patrick J. O'Conor to John O'Connell, Sr., now deceased, the only paper title to the lot, so far as this record discloses, was in Patrick J. He lived in the house on the lot, a member of a family composed of his father, his mother (the said Ellen O'Conor), his brother Martin (the appellee), and Thomas, another brother; the sister, Mary A., having intermarried with one John C. Keegan, and removed to the home of her husband. Thomas O'Conor was involved in trouble of a criminal character, the exact nature whereof is not clearly made known. He had been confined in jail under the charge against him, and had recovered his liberty, but feared further prosecution under an indictment against him, and it was necessary to secure money to assist him. Dennis O'Connell, the appellant, and John O'Connell, sons of John O'Connell, Sr., testified that said Thomas O'Conor and the appellee, Martin A. O'Conor, came to the home of John O'Connell, Sr., their father, to induce said John O'Connell, Sr., to loan $200, to be used in the defense of the criminal charge against Thomas; that said John O'Connell, Sr., then held a note for $50 signed by the appellee, Martin A., and his brother Thomas; that John O'Connell, Sr., said to Martin A., the appellee, and to Thomas O'Conor, that he would loan the money they sought to get ($200) provided security, by way of a mortgage on the property here in question, was given to secure the repayment of the money, and also to secure the payment of the $50 note which John O'Connell, Sr., then held against said appellee, Martin A. O'Conor, and his brother Thomas; that appellee, Martin, and said Thomas expressed themselves as satisfied with this arrangement, and that Thomas, in the presence of the appellee, Martin, said his brother Patrick J. owned the house and lot, and would sign the note and mortgage, and that Patrick's title was good, etc.; that Martin, the appellee, agreed that the $50 note, on which he was one of the payees, should be also secured by the mortgage, and also said that his brother Patrick J. was ‘the right owner of the lot’; that afterwards, in pursuanceof the understanding arrived at by and between the appellee, his brother Thomas, and said John O'Connell, Sr., said Patrick J. executed a note for $250, and a mortgage on the premises here involved to secure it, and delivered the same to said John O'Connell, Sr., who surrendered the note of $50, on which the appellee was one of the payees, and paid said Patrick J. $200 in money. The appellee admitted, when testifying as a witness, that he knew of the execution of the mortgage by Patrick at the time of the transaction. When asked if he did not go to John O'Connell, Sr., and assist in arranging for the loan of the money for which the mortgage was in part given, he would only reply that he could not remember; and he made the same reply when asked if he had not signed the $50 note to John O'Connell, Sr. He admitted that he heard his brother Patrick tell John O'Connell, Sr., that the title to the lot would be in him (Patrick) when his mother (Ellen O'Conor died. In reply to another interrogatory, appellee admitted that he saw said John O'Connell, Sr., as he was going to Peru, where the mortgage was afterwards executed by Patrick, and told him that Patrick would own the lot when his mother, Ellen, died; but appellee added, ‘I made use of that expression, but I did not bind myself in any way about the matter.’ When asked if the note for $50 before mentioned was not included in the mortgage, his reply was that he did not know as to that. Aside from the testimony given by the appellee, that of the appellant and his brother John was all the evidence relating to matter of the representations of the appellee to said John O'Connell, Sr., with reference to the title of Patrick to the lot. In October, 1884, after the execution of the mortgage to said John O'Connell, Sr., in May of the same year, said Patrick J. O'Conor executed a deed conveying said lot to said Ellen, his mother. Both grantor and grantee then still resided in the same dwelling on the lot,...