Donnelly v. Dumanowski

• Decision Date: 12 April 1928
• Docket Number: No. 18380.,18380.
• Parties: DONNELLY v. DUMANOWSKI et al.
• Court: Illinois Supreme Court

329 Ill. 482

160 N.E. 759

DONNELLY

v.DUMANOWSKI et al.

No. 18380.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied April 12, 1928.

Proceeding by James A. Donnelly for registration of a land title, opposed by Frank J. Dumanowski and others. From a decree for petitioner, defendants appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Francis S. Wilson, judge.

Granville W. Browning, of Chicago, for appellants.

James A. Dennelly, of Chicago, in pro. per.

THOMPSON, J.

This appeal is from a decree of the circuit court of Cook county declaring void and removing as a cloud upon the title of James A. Donnelly, appellee, a deed purporting to convey to appellant Frank J. Dumanowski two improved lots at the corner of Twenty-Seventh street and Kildare avenue, Chicago, and directing the registrar of titles to register a warranty deed executed by Mary Grzybek, a single woman, and Frank Grzybek and Florence, his wife, conveying title to the same property to appellee. The decree also ordered the issuance of a writ of assistance placing appellee in possession of the property and an accounting between Dumlanowski and the Grzybeks.

Dumanowski bought the lots in question in 1906 and thereafter erected on the corner lot a one-story brick building, with basement. There is a large storeroom in the front part which was occupied by him as a saloon, and in the rear is a living apartment of five rooms. Later two stories were added to the building, the second and third floors consisting of living apartments. On the inside lot he erected a frame building 25 feet by 60 feet, which was used for dances, lodge meetings, etc. In 1903 Magdalene Grzybek, a widow with two children, Mary and Frank, 8 and 7 years old respectively, was employed by Dumanowski as housekeeper. The next year they were married, and continued to reside in the apartment on the first floor of the building at 2700 Kildare avenue until she left him in February, 1917. He supported the children as his own and sent them to school. While they were living with him both worked in the saloon, beginning early in the morning and working until late at night. In April, 1918, Mrs. Dumanowski was granted a divorce on the ground of habitual drunkenness, and her husband conveyed to her his equity in the property in question in lieu of alimony. Mrs. Dumanowski died a month later, leaving as her only heirs Mary and Frank Grzybek. Subsequently Dumanowski married his present wife, Elsie. When the property was conveyed to Mrs. Dumanowski, and at the time of her death, it was subject to a first mortgage in favor of the Polish Roman Catholic Union of America, securing a note for $11,000, dated November 15, 1915, due five years after date, with interest at 5 per cent. per annum, payable semiannually, on the principal of which $1,000 had been paid, and a second mortgage in favor of James F. Stepina, securing a note for $2,750 dated May 6, 1916, due three years after date, with interest at 6 per cent. per annum, payable semiannually, on the principal of which $50 had been paid, and to certain special assessment warrants. In August, 1918, Frank Grzybek entered the military service and left for a training camp in Alabama. October 2, 1918, Mary executed the deed under which Dumanowski claims title to the property. Frank's name also appears on the deed, but he claims it is a forgery. Neither Frank nor Mary had paid any of the interest, taxes, or special assessments against the property since they inherited if from their mother.

Lloyd M. Brown, an attorney of Chicago, testified that he had known the Dumanowski family for many years and that he represented the husband in the divorce proceedings; that Frank Grzybek came to him in July, 1918, and said that he was leaving the city to enter the military service and that he wanted to arrange so that his sister could sell the Kildare avenue property if she could find a buyer; that he directed his stenogapher to prepare a deed, leaving the name of the grantee blank, and that Frank signed the deed and acknowledged his signature; that Frank took the deed away with him, and that the next time witness saw it was when Mary brought it to his office October 2; that the name ‘Frank J. Dumanowski’ was then written into the deed as grantee, and that Mary then signed and acknowledgedthe deed. The stenographer in Brown's office, who was also a notary public, testified that she remembered preparing the deed and leaving the name of the grantee blank and taking Frank's acknowledgment; that she also remembered completing the deed by inserting the name of the grantee and taking Mary's acknowledgment; that she used only one certificate for the acknowledgment of both grantors, dating the certificate July 29, 1918, and attaching her signature and seal October 2, 1918.

Assuming that Frank Grzybek signed the deed and acknowledged it as Brown said he did, it was void and did not convey title to Dumanowski. Mickey v. Barton, 194 Ill. 446, 62 N. E. 802;Whitaker v. Miller, 83 Ill. 381;Chase v. Palmer, 29 Ill. 306. A deed is a writing sealed and delivered by the grantor and originally was executed by all the parties to it. In order to be valid every deed must contain a grantor, a grantee, and a thing granted. Where there is no grantee to the deed, one of the essential elements is wanting and the deed is of no effect.

The chancellor held that the deed was obtained from Mary by undue influence, duress, and fraud, and so was void. The evidence shows that Mary was a young woman 23 years old, weighing about 90 pounds, and in poor health. She was employed as a stenographer and had had no business experience. There is no proof that she had personal knowledge of the condition of the title to her property or the nature or amount of the incumbrances. She says immediately after her brother left the city her stepfather, Dumanowski, began to demand that she convey the property to him, accompanying his demands with abusive language and threats. Dumanowski says that he was approached by a real estate dealer who represented Mary, and that he was persuaded to take the property and assume the incumbrances because his stepchildren were unable to meet their obligations and would have lost the property. Whatever may be the truth concerning these preliminary steps, it is admitted that Mary and Dumanowski met at the office of Felix L. Majka, the real estate dealer, and that a sales contract was there drawn and signed. This contract recites that the property is subject to a first mortgage of $11,000, a second mortgage of $2,700, a third mortgage of $583, and a judgment note of $300, together with unpaid interest on all the incumbrances. By the contract Dumanowski agrees to assume all these obligations and to pay to Mary $25 as earnest money and $75 upon delivery of the deed. The next day they met at the office of Brown and the deed was executed. Mary says that a list of the obligations was shown to her, from which it appeared that the property was incumbered for more than $25,000, and it was represented to her that she had...