Corzine v. Keith

• Decision Date: 19 November 1943
• Docket Number: No. 26949.,26949.
• Citation: 384 Ill. 435,51 N.E.2d 538
• Parties: CORZINE et al. v. KEITH.
• Court: Illinois Supreme Court

384 Ill. 435

51 N.E.2d 538

CORZINE et al.

v.KEITH.

No. 26949.

Supreme Court of Illinois.

Nov. 19, 1943.

Action by Truman Corzine and another against Charles T. Keith for an accounting for labor and for money paid out by them on account of taxes, insurance, repairs and improvements on certain premises which had been conveyed to plaintiffs by defendant by a deed reserving a life estate in the defendant, wherein the defendant filed a counterclaim seeking cancellation of the deed. From an adverse decree on his counterclaim, the defendant appeals.

Reversed and remanded.Appeal from Circuit Court, Union County; Loyd M. Bradley, judge.

Paul D. Reese, of Jonesboro, for appellant.

W. D. Lyerle, of Jonesboro, for appellees.

THOMPSON, Justice.

By this appeal appellant, Charles T. Keith, seeks to reverse a decree of the circuit court of Union county, entered on his counterclaim to cancel a deed executed by him, to appellees, Truman Corzine and Mary Corzine, in which conveyance appellant reserved a life estate. Appellees first filed an action against appellant, in which they alleged in their second amended complaint that the consideration for certain work done on the premises, described in the complaint and herein involved, had wholly failed by appellant's interference with their use and enjoyment of the premises as agreed to, and they prayed an accounting for labor and for money paid out by them on account of taxes, insurance, repairs and improvements on the premises involved. The prayer of the complaint also was that appellant be ordered to pay appellees the amount found due and that upon such payment appellees be directed to execute and deliver to appellant a deed to said premises, and that upon his failure to pay said sums so found due he be enjoined from further molesting or preventing appellees from the use and enjoyment of the premises under the terms of said agreement.

A copy of the deed from appellant to appellees was made an exhibit to the second amended complaint. It is a statutory warranty deed, which contains, directly following the description of the property conveyed, the following clause: ‘reserving to the grantor a life estate in said premises together with the right to occupy the same with the grantee.’

According to the allegations in the second amended complaint, appellees claim a negotiated bargain and sale of said premises whereby appellant orally agreed, as a part of the consideration, that appellees might occupy and use said premises as they saw fit, cultivating and managing the same without interference; that appellees were to pay all delinquent and subsequent taxes, make all necessary repairs to the buildings on the farm, build fences and make any and all necessary improvements; that appellant was to have the right to use one of the dwelling houses on said premises during his life, was to have one meal and a quart of milk a day and to have furnished to him by appellees also such clothing as he should need during his lifetime. Charges were also included that appellant had refused to abide by the agreement and was interfering with appellees' rights of use and enjoyment of the premises as agreed upon. A motion to strike was first filed by counsel for appellant. Then an answer and three counterclaims were filed by appellant. The contents of the answer are not material here as, after the proofs were in, the second amended complaint was dismissed with costs against appellees up to that time.

In his first counterclaim appellant avers his ownership of the farm in question on November 15, 1935; that he was 77 years old, with ailing eyesight, loss of hearing, and other infirmities; that he made the deed in question, and that the true consideration therefor was an oral agreement whereby it was agreed that appellees should have the right jointly to occupy said premises with appellant during his lifetime upon the payment by appellees of certain general and delinquent taxes with penalties, and all future taxes and assessments, that appellees were to farm said premises annually during appellant's lifetime in a business-like manner and to pay or give appellant his lifetime rent of one third of all harvested crops or one third of the proceeds thereof; to keep all buildings in proper and necessary repair during appellant's lifetime; to permit appellant to use and occupy such pasture lands as should be necessary for the proper support of appellant's separate livestock; to permit appellant to occupy as his separate dwelling the two-story dwelling house with such small plot or plots of ground as he might need for growing fruits and vegetables for his table; to keep all buildings insured and in case of loss to restore them; and to supply appellant medical aid and attention and nursing services as appellant's condition might require.

It is further averred in substance that appellees moved on said premises but have breached the contract by denying appellant the use of the small plots of ground required for raising fruits and vegetables, and by violence preventing appellant from using such plots; that appellees have failed and refused to provide medical care and attention and nurse hire when his physical condition required it; that appellee Truman Corzine and his sons and stepson insulted him with abusive and profane language and violently assaulted him without cause and have ordered him to leave the premises; and that appellees' conduct toward him was for the purpose of driving him away.

The second counterclaim charged appellees with committing waste, and the third counterclaim sought $5,000 damages for assault and battery. Appellant's prayer for relief was that the deed be cancelled and that appellees deliver up possession, and for other specific and general relief.

Appellees answered the counterclaim setting up substantially the facts alleged in their second amended complaint. Appellant filed a reply and among other things pleaded that appellees are estopped to rely on any oral agreement by virtue of the deed reserving a life estate in appellant with the right of possession, rents, issues and profits derived therefrom. On motion the court struck the plea of estoppel set up in the reply and in the course of the hearing admitted evidence as to the oral agreement over objections of appellant's counsel.

In an amended answer to the counterclaims appellees say that should appellant not be willing to return to said premises and permit appellees to furnish him food, clothing, care and attention as agreed to, then they, appellees, are willing and do consent that the court fix a fair cash rental value of the premises which they will pay during appellant's life.

In his amendments to the reply appellant avers that upon an accounting he stands ready and willing that appellees have reimbursement for any sums found due them for improvements and repairs.

After a full hearing, resulting in a voluminous record, the court entered a decree that appellees pay $900 to appellant for the past three years' rent on the farm, and $300 a year on or before September 1st each year during the remainder of appellant's life and that each party pay his own costs.

Twenty-six assignments of error challenge the decree, some of which may be considered together and others may be disregarded entirely, either because they are included in those considered or are not controlling or persuasive on any vital issue in the case.

We cannot agree with the contention of appellant's counsel that appellees are estopped by the reservation clause in the deed from proving by oral evidence the parol agreement, which admittedly constituted the consideration for the conveyance.

Oral evidence was admissible to show the consideration at the time the deed was made, so that performance might be enforced according to the intention in which they mutually understood it (Strain v. Hinds, 277 Ill. 598, 115 N.E. 563;Whalen v. Stephens, 193 Ill. 121, 61 N.E. 921), or that the deed might be cancelled if the proof disclosed a violation of the agreement. By averring in his counterclaim that the oral agreement constituted the consideration for the deed and giving his own testimony as to the terms of that agreement, appellant waived any objection to evidence offered by appellees on the same matter. Whalen v. Stephens, 193 Ill. 121, 61 N.E. 921. The chancellor did not err in striking the plea of estoppel and in admitting the evidence as to the terms of the oral agreement offered by appellees. That part of the contract reduced to writing was merely a part execution of an entire agreement. In such cases the whole agreement may be proved, and evidence of the oral agreement did not tend to vary the terms of the contract in any of its obligatory parts. Morris v. Tillson, 81 Ill. 607. No attempt was made to alter or modify the deed, as was the case in Emery v. Mohler, 69 Ill. 221.

The contention of appellant's counsel that the decree lacks supporting proof narrows the inquiry in this...