De Graff v. Manz

• Citation: 96 N.E. 516,251 Ill. 531
• Parties: DE GRAFF v. MANZ et al.
• Decision Date: 06 December 1911
• Court: Illinois Supreme Court

251 Ill. 531

96 N.E. 516

DE GRAFF

v.MANZ et al.

Supreme Court of Illinois.

Oct. 25, 1911.

Rehearing Denied Dec. 6, 1911.

Error to Circuit Court, Cook County; Richard S. Tuthill, Judge.

Bill to set aside a deed and for partition by Lizzie De Graff against Nettie Manz and others. Bill dismissed, and plaintiff brings error. Affirmed.

Martin C. Koebel and Hayden N. Bell, for plaintiff in error.

Cheney, Evans & Wilson, for defendants in error.

VICKERS, J.

Lizzie De Graff, a granddaughter of Marcianna Kallas, filed a bill in chancery against Frank Kallas, Nettie Manz Kallas, and other formal defendants, for partition, and for a decree setting aside a deed made by Marcianna Kallas to Nettie Manz Kallas as a cloud upon the title of the complainant below, upon the alleged grounds of fraud and undue influence, and for the further reason that said deed was never delivered to the grantee. The answer of the defendants denied all of the grounds relied upon for relief. The trial court directed two issues at law to be made up and submitted to a jury for determination. The issues formulated for determination by the jury were, first, whether the deed in question was the deed of Marcianna Kallas; and, second, did Marcianna Kallas, at the time of her death, hold title to a portion of the real estate described, as trustee, for the benefit of Frank Kallas? Upon the hearing before the jury the court withdrew the second issue from the consideration of the jury, and after the evidence was all heard, on motion of defendants, directed the jury to find a verdict for the defendants upon the first issue submitted, and rendered a final decree dismissing the bill for want of equity. The complainant below has sued out a writ of error to bring the record into review in this court.

[1]Plaintiff in error first insists that the court erred in directing a verdict upon the feigned issue made up for submission to the jury. The argument on this point is that, the verdict in such case being merely advisory to the chancellor and of an evidentiary character, the whole purpose of a jury trial is defeated when the verdict is the result of an expressed direction of the court. There might be much force in this contention, if the trial by jury were a matter of right, which the parties could demand, and which the court could not refuse to grant. But such is not the established practice in respect to the trial of feigned issues out of chancery. It is a matter entirely within the discretion of the chancellor, in all chancery cases where a trial by jury is not specially provided for by statute, to submit or refuse to submit questions of fact to a jury, and his discretion in this regard continues throughout the entire hearing of the cause. It follows that the chancellor has entire control of the issues until they are finally settled by the decree of the court. The verdict of the jury is merely for the purpose of satisfying the conscience of the chancellor, and if, after the trial is entered upon before the jury, the evidence develops a state of facts upon which the chancellor is satisfied to rest a final decree, without reference to any verdict that the jury might render, the court may discharge the jury without a verdict, or, as was done in this case, direct a verdict in accordance with the court's views, and render a decree accordingly. In the late case of Riehl v. Riehl, 247 Ill. 475, 93 N. E. 318, this court had occasion to consider and determine the practice governing the trial of feigned issues out of chancery, and it was there decided that any error or irregularity in the proceeding before the jury, such as rulings upon evidence and the like, is unimportant, if upon a consideration of the entire record there is competent evidence sufficient to support the decree, and substantial justice appears to have been done between the parties. The error now under consideration is within the reasoning of the case above cited, and that case is sufficient to justify the action of the court below in withdrawing the feigned issues from the consideration of the jury.

[2] The other assignments of error raise questions of fact. It is contended by plaintiff in error that the decree is contrary to the evidence relating to the issue of fraud and undue influence. The evidence establishes the following facts:

At the time of her death Marcianna Kallas was a few months over 75 years of age. She had been a widow for a number of years. She held the title to three parcels of real estate located in the city of Chicago, on one of which-that known as the ‘Cornell street property’-she resided. She had two sons, Joseph and Frank Kallas. After his mother became a widow, in the spring of 1903, Joseph Kallas Moved with his wife and three children into the house with his mother. In December, 1903, Joseph Kallas had domestic troubles which resulted in a separation, and his wife left the home of Marcianna Kallas, leaving her husband and some of their children at the home of Marcianna Kallas. Joseph resided with his mother and took care of her until in 1905, when he, on account of illness, was removed to a hospital, where he soon after died. At the time of his death Joseph Kallas left surviving him his wife, Anna Kallas, and three children, Lizzie, Charles, and Bertha. Lizzie married a man by the name of De Graff, and she was complainant below and is plaintiff in error in this court. After the death of Joseph Kallas, the other son, Frank Kallas, who had separated from his wife, went to live with his mother. The evidence tends to show that during the time Joseph resided with his mother she was not on friendly terms with Frank, and after Frank moved into her...