Gregory v. Gregory

• Decision Date: 10 December 1926
• Docket Number: No. 17434.,17434.
• Citation: 323 Ill. 380,154 N.E. 149
• Parties: GREGORY et al. v. GREGORY.
• Court: Illinois Supreme Court

323 Ill. 380

154 N.E. 149

GREGORY et al.

v.GREGORY.

No. 17434.

Supreme Court of Illinois.

Oct. 28, 1926.

Rehearing Denied Dec. 10, 1926.

Suit by Francis M. Gregory and others against Alonzo J. Gregory. From the decree all parties appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Peoria County; John M. Niehaus, judge.

George W. Hunt, of Peoria, for appellant.

L. O. Eagleton and J. E. Daily, guardian ad litem, both of Peoria, for appellees.

THOMPSON, J.

September 8, 1921, Henry S. Gregory and Cornelia A. Gregory, brother and sister, owned as tenants in common an improved farm of 217 acres in Peoria county. On that date they executed a deed conveying this farm to Alonzo J. Gregory, a nephew, reserving ‘for themselves and the survivor of them the rents and profits and possession of said above described lands for and during the natural lifetime of said grantors and the survivor of them.’ Henry died October 30, 1921, intestate, leaving as his heirs his sister, Cornelia; two brothers, E. L. and John Gregory; two nieces and a nephew, the children of a deceased brother, George A. Gregory; two grandnephews, children of a deceased daughter of George; one nephew, the only son of a deceased brother, David L. Gregory; and two nephews and a niece, the children of a deceased sister, Frances Ruhm. December 30, 1921, Cornelia in her own right, and all of the heirs of Henry except John Gregory, filed their bill in the circuit court of Peoria county to set aside the warranty deed executed by Henry and Cornelia, conveying the lands in question to Alonzo and to partition the lands. The cause was referred to a master in chancery, who took the evidence and reported, recommending that the deed be set aside as to Cornelia, and that it be confirmed as to Henry. The chancellor overruled exceptions filed to the master's report and entered a decree accordingly. Alonzo appealed from that portion of the decree setting aside the deed as to Cornelia, and the complainants appealed from that portion denying the prayer to set aside the deed as to Henry. Appellant, Alonzo J. Gregory, perfected his appeal and filed a complete record in this court. Complainants did not perfect their appeal, but assigned cross-errors on the record filed by appellant.

[1] The first question presented is that raised by the motion of appellant to strike the cross-errors of appellees. This motion is based on the ground that the decree is severable, and, in effect, two distinct decrees. This contention would be sound if the only relief prayed were a cancellation of the deeds, and if the decree were limited to the granting or denial of this prayer. This, however, is a suit for partition, and the decree entered orders a partition of the lands in accordance with the interests found by the decree. Appellant contends that the deed is valid and that there should be no partition of the lands. Appellees contend that the deed is void as to both grantors and that the decree should have declared the interests of the parties as prayed and ordered partition accordingly. It is evident, therefore, that the decree is a unit and that the cross-errors were properly assigned. Such practice was recognized in Atwood v. Buck, 113 Ill. 268.

While the evidence in the record and the argument of the attorneys for appellees cover a wide range, the issues made by the pleadings are narrow. Among other things, the bill alleges that Henry and Cornelia came into possession of the farm by virtue of the will of their father; that they have never been married; that they occupied the principal residence on the farm as their home; that a smaller dwelling house on the farm was built for the use of Alonzo, who operated the farm under an agreement with Henry; that Henry owned all the personal property on the farm and had the exclusive management of the farm; that Cornelia lived with her brother and performed all the household duties, but was not consulted concerning the management of the farm and received no income from it; that the receipts from the farming operations were kept in the bank in Henry's name, and that the expenses were paid from this fund by checks drawn by Henry or Alonzo; that Alonzo operated the farm for about 12 years before the deed was made, and that he transacted most of the business during the last few years of his uncle's life; that a confidential relation existed between Alonzo and Henry; and that Henry was sick and infirm because of disease and old age at the time the deed was executed. The bill further charges that Henry's signature to the deed is the result of the fiduciary relation existing between Alonzo and Henry, and that Alonzo obtained Cornelia's signature by fraud and circumvention.

[2] The bill does not charge that the grantors were mentally incompetent to execute a valid deed, or that the deed was obtained from them by duress or undue influence. Appellees practically concede that the decree setting aside the deed as to Cornelia is based upon grounds that are not charged in the bill, but they contend that the omissions of the bill have been supplied by allegations in the answer of appellant. An informality in pleading is aided, if the adverse party answers the defective pleading in such a manner that the informality therein is expressly or impliedly supplied or rendered formal or intelligible (1 Chitty's Pl. [14th Am. Ed. from 6th London Ed.] ”71), but every fact essential to the complainant's right to maintain the bill and obtain the relief prayed must be stated in the bill (Story's Eq. Pl. [6th Ed.] § 257). No facts are properly in issue unless charged in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and the evidence, for the court pronounces its judgment secundum allegata et probata. Fletcher's Eq. Pl. & Pr. § 87. If an admission is made in the answer, it will be of no use to the complainant, unless it is put in issue by some charge in the bill. Story's Eq. Pl. (6th Ed.) § 264; Jackson v. Ashton, 11 Pet. 229, 9 L. Ed. 698;Equitable Mortgage Co. v. Finley, 133 Ala. 575, 31 So. 985;Middlebury Electric Co. v. Murkland, 89 Vt. 10, 93 A. 291;Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230. The bill is the measure of the power of the court to grant relief. The decree cannot be broader than the bill. A complainant must recover on the case made by his bill or he cannot recover at all. He cannot be permitted to state one case in the bill and make out a different case by his proof. Tucker v. Powell, 318 Ill. 166, 149 N. E. 10;Sharkey v. Sisson, 310 Ill. 98, 141 N. E. 427;Rowan v. Bowles, 21 Ill. 17;Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639;Stuart's Heirs v. Coalter, 4 Rand (Va.) 74, 15 Am. Dec. 731.

Appellant does not contend that a confidential relation did not exist between him and Henry. Where such a relation exists, and a gift is made to the person in whom the confidence is reposed by reason of the relation, it is prima facie void. The law presumes, from the mere existence of the relation, that the gift was obtained by improper means, and the burden of proof is upon the donee to show that it was the free and voluntary act of the donor. Gilmore v. Lee, 237 Ill. 402, 86 N. E. 568,127 Am. St. Rep. 330; 2 Pomeroy's Eq. Jur. (4th Ed.) § 956. Equity does not, however, deny the possibility of valid transactions between the two parties. The proof in this case shows, without contradiction, that Henry gave instructions to the lawyer who prepared the deed to prepare a deed securing to his sister, Cornelia, a life estate in the entire farm and giving to Alonzo the farm after his sister's death. The fact that the deed signed by Henry...