Creighton v. Elgin

• Decision Date: 18 November 1946
• Docket Number: No. 29617.,29617.
• Citation: 395 Ill. 87,69 N.E.2d 501
• Parties: CREIGHTON v. ELGIN et al
• Court: Illinois Supreme Court

395 Ill. 87

69 N.E.2d 501

CREIGHTON

v.ELGIN et al

No. 29617.

Supreme Court of Illinois.

Sept. 18, 1946.

Rehearing Denied Nov. 18, 1946.

Appeal from Circuit Court, Wayne County; Charles T. Randolph, judge.

Suit by Madeline M. Creighton against Mary Creighton Elgin and others for partition of land, wherein defendants filed a counterclaim. From a decree, defendants appeal and plaintiff cross-appeals.

Affirmed.Mills, Umfleet & Mills, of Fairfield, for appellants.

Burgess, Loy & Burgess, of Fairfield, for appellee.

SMITH, Justice.

This is an appeal and a cross appeal from a decree entered by the circuit court of Wayne county, in a partition suit. The suit was filed by appellee, Madeline M. Creighton, for the partition of a tract of land consisting of 340 acres. It was alleged in the complaint that the property was owned, as tenants in common, equally by appellee and Mary Creighton Elgin, subject to an outstanding oil-and-gas lease, the validity of which is stipulated by the parties. The principal defendants named in the suit were Mary Creighton Elgin and Edward W. Creighton. All other defendants are nominal parties. To the complaint the above-named defendants filed an answer in which they denied the allegations of the complaint as to the ownership of the property, and alleged that said defendants were the owners of said property as the only heirs-at-law of Lucretia E. Creighton, deceased. They also filed a counterclaim in which they made the same allegations. By the counterclaim they also alleged that two other parcels of real estate, referred to in the record as the ‘Crews farm’ and the ‘Poe lot,’ the titles to which were in the name of John M. Creighton at the time of his death, were held by him in trust for Lucretia E. Creighton, and that defendants Mary Creighton Elgin and Edward W. Creighton were, in fact, the owners of said properties, as heirs of Lucretia E. Creighton, their mother. They asked for a decree finding that title to said Crews farm and said Poe lot was held by John M. Creighton at the time of his death, as trustee, for their use and benefit. A reply was filed to the answer by appellee. By an answer to the counterclaim, appellee joined issue thereon. A reply was also filed by said defendants to the answer to their counterclaim. The evidence was heard in open court.

The court found the issues on the original complaint in favor of appellee; that the property described in the complaint was owned jointly, one half by appellee, Madeline M. Creighton, and the other half by appellant Mary Creighton Elgin, as tenants in common. Partition of this property was ordered. On the counterclaim, as to the Cress farm, the court found the issues in favor of Madeline M. Creighton, the defendant in the counterclaim. As to said property the counterclaim was dismissed. From those parts of the decree awarding partition on the original complaint and dismissing the counterclaim as to the Crews farm, Mary Creighton Elgin and Edward W. Creighton perfected the appeal.

The court by its decree found the issues on the counterclaim as to the Poe lot in favor of the counterclaimant Edward W. Creighton, and against Madeline M. Creighton, the defendant named therein. It decreed that the title to said lot was held by John M. Creighton at the time of his death, in trust, for the use and benefit of Lucretia E. Creighton, and did not pass to Madeline M. Creighton under her husband's will, and that said property now belongs to Edward W. Creighton as devisee under his mother's will. From that part of the decree appellee perfected the cross appeal.

The case was here on a former appeal, Creighton v. Elgin, 387 Ill. 592, 56 N.E.2d 825. By the decision in that case a decree in favor of the defendants was reversed solely for errors occurring on the trial. The cause was remanded for a new trial. A new trial was had, with the above results. While the facts in the record on the former appeal are somewhat fully set out in the opinion in that case, due to the fact that there is considerable additional evidence in the record before us on the present appeal, it will be necessary to repeat many of those facts in this opinion.

As already observed, three parcels of real estate are involved. These properties, in addition to the legal description of each, are designated in the record as the ‘home place’ consisting of 340 acres of farm land, the ‘Crews farm’ consisting of 160 acres of farm land, and the ‘Poe lot,’ being a town lot located in the city of Fairfield. We will so refer to them in this opinion. The issues are such that the case must be considered separately as to each of those proparties. We will first consider the case in its relation to the home place.

On February 25, 1918, Judge Jacob R. Creighton executed a warranty deed in which Lucretia E. Creighton, his wife, joined. This deed purported to convey to his two sons, Edward W. Creighton and John M. Creighton, several tracts of land, including the home place. After the deed had been properly signed and acknowledged and a certificate of acknowledgment in proper form attached by the notary, Judge Creighton handed the deed to his wife with the statement, ‘You take care of this until the boys are home and you can give it to them at that time.’ The deed was not delivered in Judge Creighton's lifetime. The son John, at the time this deed was executed, was serving overseas in the United States Army. Judge Creighton continued to manage, occupy and use, as his own, the lands described in the deed, until his death in 1920. He left surviving, Lucertia E. Creighton, his widow, his sons Edward and John, and his daughter Mary, (now Mary Elgin,) as his only heirs-at-law. In the meantime, between the time the deed was executed and the date of his death, Judge Creighton sold to various purchasers some of the lands described in the deed, for which he and his wife executed deeds. He also entered into contracts for the sale of certain other tracts which were described in that deed. One or more of these contracts was carried out and performed by the widow after Judge Creighton's death.

Several years prior to the execution of the deed on February 25, 1918, Judge Creighton executed his will in which he bequeathed and devised all of his property to Lucretia E. Creighton, his wife. After his death in 1920, this will was admitted to probate by the county court of Wayne county. His estate was administered. Lucretia E. Creighton, his widow, accepted the provisions of the will and took possession of all the property of the testator, including the home place.

The son John, who was one of the grantees named in the deed executed by Judge Creighton and his wife on February 25, 1918, after he returned from service in World War I, obtained a position in Detroit. Sometime during the year 1930, which was some ten years after his father's death, he returned to Wayne county where he managed and operated the properties belonging to his mother, for several years. He died on October 7, 1942. He left no children or descendants of children. He left a will in which he devised and bequeathed all of his property to his widow, the appellee, Madeline M. Creighton. His will was admitted to probate by the county court of Wayne county. The estate was administered and his widow took all his property as sole legatee and devisee.

Some years prior to November, 1935, Lucretia E. Creighton, the widow, Edward W. Creighton, one of the sons, and the daughter, Mary, moved to California. The son john was left in charge of the properties in Wayne county by the mother. Shortly prior to November 20, 1935, Edward wrote a letter to his brother John. This letter is set out in full in the former opinion and its substance is hereinafter more fully referred to. The letter bears no date except ‘Sunday.’ Some of the facts stated in that letter were referred to in a letter written by Mary to her brother John, which is dated November 20, 1935. It is obvious these two letters were written near the same time. The letter from Mary is also set out in full in the former opinion, and is discussed somewhat in detail later in this opinion. It will be observed that this letter purports to ‘add to’ a letter written by the mother to John. The mother's letter is not in the record. Whether John made any reply to these letters the record does not disclose.

On January 13, 1936, the deed executed by Judge Creighton and wife on February 25, 1918, was filed for record in the recorder's office of Wayne county. There is no direct evidence in the record showing by whom said deed was filed for record. Simultaneously with the filing of this deed for record in the office of the recorder of Wayne county, there was also filed for record in that office a deed from Edward W. Creighton, conveying to Mary Creighton, a one-half undivided interest in the home place, which was described in the deed of Judge Creighton and wife, dated February 25, 1918, a deed from Lucretia E. Creighton conveying to Mary Creighton certain town lots in Turney's Second addition to Fairfield, referred to in Edward's letter as the Moore home, a deed from Lucretia E. Creighton to John M. Creighton, conveying the property referred to in Edward's letter as the Kennedy farm, and a deed from Lucretia E. Creighton to Mary Creighton, conveying certain town lots in Bonham's addition to Fairfield. As already observed, these five deeds were filed and recorded simultaneously in the recorder's office of Wayne county. They were entered and numbered on the entry book consecutively in the order above named. The entry book shows that these deeds, after they had been recorded, were all delivered to John M. Creighton, who ‘called’ for them. The record further shows that on December 25, 1935, Lucretia E. Creighton also executed a deed conveying to Mary Creighton the property referred to in Edward's letter as the Durnell property. The deed from Judge Creighton and wife dated February 25, 1918, was in the possession of ...