Foston v. Swanson

• Decision Date: 21 February 1923
• Docket Number: No. 14610.,14610.
• Citation: 138 N.E. 119,306 Ill. 518
• Parties: FOSTON et al. v. SWANSON et al.
• Court: Illinois Supreme Court

306 Ill. 518

138 N.E. 119

FOSTON et al.

v.SWANSON et al.

No. 14610.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Superior Court, Cook County; Denis E. Sullivan, Judge.

Suit by Lela A. Foston and others against Helen Elizabeth Swanson and others, to set aside a deed. The bill was dismissed for want of equity, and the plaintiffs bring error.

Affirmed.

Alva L. Bates and George C. Adams, of Chicago, for plaintiffs in error.

George Gillette, C. G. Kinney, and Morton L. Roberts, all of Chicago, for defendants in error.

CARTER, J.

The bill of complaint in this cause was filed in October, 1921, in the superior court of Cook county. After it had been amended, a demurrer was sustained to the amended bill, and it was dismissed for want of equity, whereupon this writ of error was sued out.

The facts as set forth in the amended bill are substantially as follows: Will R. Taggart, now deceased, married Elizabeth Swanson on February 12, 1913, she being called at that time Elizabeth Brosmer, and she so represented herself. They lived together until September 3, 1919, when Elizabeth Swanson Taggart (hereafter called in this opinion Swanson) received knowledge that her former husband, John Swanson, from whom she had never been divorced, was living and residing in Chicago. Upon receiving this knowledge she left Taggart, and he thereupon instituted annulment proceedings against her on account of the fraudulent misrepresentations made at the time of her alleged marriage to him, and a decree was entered in his favor. A few months after Taggart's marriage to Elizabeth Swanson, in 1913, he and his reputed wife entered into an agreement for a warranty deed on June 2, 1913, to purchase for $3,500 a certain piece of property known as 3642 Vernon avenue, on the South Side, in Chicago. Taggart at that time instructed his agent, Frederick H. Bartlett, that the contract should be drawn to run to Will R. Taggart and Elizabeth Taggart, his wife, as joint tenants and not as tenants in common. After the execution of the contract Taggart made payments, under the terms of the agreement, from his own money, assuming an incumbrance of $1,600 as part of the purchase price. After paying the first two installments he paid other installment's of $20 monthly, beginning August 1, 1913. The amended bill alleges that no part of the purchase price was paid by Elizabeth Swanson, or if she did make any payments they were out of Taggart's earnings; that about April 16, 1920, Taggart became ill and was unable to earn money at his trade of brick mason, and that his brothers and sisters contributed various sums which totaled $831, the detailed items of which are set forth in an exhibit attached to the bill of complaint; that after she had found her former husband and after a discussion of the matter between her and Taggart when she left him, about September 3, 1919, she delivered the contract to him, and he delivered to her, in consideration thereof, certain furniture and fixtures, which she moved from the premises; that thereafter Taggart had possession of the real estate, and his heirs at law have been in possession since his death; that Elizabeth Swanson, on August 25, 1921, in collusion with Bartlett, the agent heretofore mentioned, fraudulently caused a warranty deed to be issued to her and Taggart, as joint tenants, for said real estate, and that at the time the deed was delivered the contract was still in Taggart's possession, and that Bartlett knew that Elizabeth Swanson had surrendered her rights in the contract; that said conveyance in joint tenancy was a fraud upon Taggart and his heirs, and that Elizabeth Swanson has attempted to secure possession of the premises by suits against the tenants in the municipal court of Chicago, and, unless restrained by injunction, the tenants will be ousted. It is alleged in the amended bill that the interest on the $1,600 trust deed, as well as other debts, will soon be due, and that, unless the heirs are permitted to collect the rents and handle the premises, irreparable damage will be done, and the bill prays that Elizabeth Swanson be enjoined from incumbering or disposing of the property. The prayer of the bill is that the deed to Taggart and Elizabeth Swanson, dated August 25, 1921, be set aside and declared void.

The payments alleged to have been made by the heirs are thirteen monthly payment's on the contract, amounting to $271; interest on the mortgage, amounting to $137; taxes for 1920, $56; payments for plumbing, plastering, decorating, and other specified items, amounting to $167; attorney's fees in the annulment proceedings and in a suit for accounting, $200; total, $831.

The demurrer avers that the bill is for distinct matters and causes and is multifarious; that, even though there was fraud in procuring the marriage ceremony and shortly thereafter in the execution of the contract for the purchase of the premises as joint tenants, an action for fraud would not survive to the heirs of Taggart; that an oral assignment from Elizabeth Swanson to Taggart of her interest in the contract is an insufficient basis for the relief asked by the bill.

The pleadings as found in the record show the continuation of the payments on the warranty deed from the time it was entered into until the deed was issued, August 25, 1921. There is no suggestion of any written assignment or change as to the real estate agreement, but it is simply asserted that Elizabeth Swanson, under an oral agreement with Taggart, delivered to him the contract for the deed and took certain furniture and property, thus relinquishing her interest in the real estate. It would appear from the allegations in the amended bill that it was at Taggart's suggestion that Bartlett, the agent, drew the agreement for the deed in the names of ‘Will R. Taggart and Elizabeth Taggart, his wife, as joint tenants and not as tenants in common,’ and no further instructions...