Hardin v. Wolf

• Decision Date: 08 October 1925
• Docket Number: No. 16419.,16419.
• Citation: 148 N.E. 868,318 Ill. 48
• Parties: HARDIN v. WOLF et al.
• Court: Illinois Supreme Court

318 Ill. 48

148 N.E. 868

HARDIN

v.WOLF et al.

No. 16419.

Supreme Court of Illinois.

June 18, 1925.

Rehearing Denied Oct. 8, 1925.

Bill by Mark Hardin against Mary J. Wolf and others, in which William B. O'Brien intervened. From a decree of partition, certain defendants appeal.

Reversed and remanded, with directions.Appeal from Superior Court, Cook County; Oscar Hebel, Judge.

Dwight McKay and Wharton Plummer, both of Chicago, for appellants.

O'Brien, Rutledge & Hayes, of Chicago, for appellee.

DE YOUNG, J.

Mark Hardin on April 27, 1923, filed a bill for partition in the superior court of Cook county against Mary J. Wolf, John J. Wolf, her husband, and James E. O'Brien, in which it is alleged that on September 27, 1916, James C. Byrne, a bachelor, conveyed to Hardin and Mary J. Wolf, his daughter, as joint tenants and not as tenants in common, a certain lot in the city of Chicago; that the lot is improved by a two-story brick building which contains a store and undertaking room on the first floor and an apartment above, occupied by Hardin and Mrs. Wolf; that they, as joint tenants, are the owners of the premises, with the right to the sole survivorship in the surviving tenant; that the undivided interest of Mrs. Wolf is subject to the lien of a trust deed to O'Brien, dated and recorded on September 28, 1916, made to secure the payment of a certain note of even date, executed by Mary J. and John J. Wolf, for $3,500, payable to their own order, and indorsed and delivered, due in 10 years after its date, with interest at 5 per cent. per annum, payable semiannually; that Hardin and Mrs. Wolf are each entitled to an undivided one-half interest in the premises, subject to the homestead estate of the other; and that the share of Mrs. Wolf is further subject to the interest of O'Brien as trustee. The prayer of the bill asked that the interests of the parties be declared, that commissioners be appointed to make partition, that in the event partition could not be made the premises be sold and the proceeds divided, and that the interest of Mrs. Wolf or her share of the proceeds be charged with the lien of the trust deed, ‘and the rights of the unknown owner or owners, holder or holders, of the notes secured thereby.’ Mary J. and John J. Wolf interposed a demurrer to the bill, and assigned as the cause therefor that the owners of the note for $3,500 were necessary parties defendant. The demurrer was sustained.

Pursuant to leave granted, William B. O'Brien filed an intervening petition, in which he alleged that he was the legal holder and owner of the promissory note secured by the trust deed to James E. O'Brien, that he acquired title thereto from Hardin, and that no part of the interest on or the principal of the note had been paid. By his petition he admitted the allegations of the bill of complaint, submitted himself to the jurisdiction of the court, and asked that his interest in the premises might be declared. On July 27, 1923, Hardin amended his bill, by charging that William B. O'Brien was the legal holder and owner of the note for $3,500, and making him a party defendant thereto.

Mary J. Wolf filed an answer, in which she averred, among other things, that the joint tenancy set forth in the bill of complaint was created pursuant to an agreement between her father and herself, the joint tenants; that the premises should be used and occupied by them as their home during their joint lives; that he, during the remainder of his life, should have her services as housekeeper; that upon the death of either the whole property should belong to the survivor; and that neither, after the vesting of the title in them in joint tenancy, should sell, convey, incumber, divide, or partition the property or their interests therein, or do anything to terminate their use and occupancy of the premisesduring their joint lives, or the vesting of the title thereto in the survivor. Mrs. Wolf further avers in her answer that her father, her husband, and herself have, since the deed in joint tenancy was executed, occupied the premises as their home; that she has performed the required services as housekeeper, given her father the necessary personal care and attention, kept the premises in good repair at considerable expense, and fully performed the agreement on her part; that she has not sold, conveyed, incumbered, divided, or partitioned the premises or her interest therein, nor has she suffered any judgment to be recovered against her; that she has done nothing to interfere with or terminate the use and occupancy of the premises by her father as a home or the vesting of the title in him in the event of her prior death; and that the instant suit is a violation of their agreement, and an attempt to oust her from the enjoyment of the premises, and to prevent her from obtaining the title thereto in case she survives her father. In her answer Mrs. Wolf then avers that, after the execution of the deed in joint tenancy, her father represented to her that for his protection a note and trust deed were necessary to prevent a transfer of her interest to his prejudice, and that his attorney, William B. O'Brien, had prepared a note and trust deed for that purpose; that her father requested her husband and herself to sign the note and trust deed; that the attorney made like representations, and stated that, in the event of her father's prior death, the note would be surrendered and the trust deed released: that pursuant to her father's request, and having implicit confidence in him, and relying upon the representations made by him and his attorney concerning their purpose and necessity, she and her husband signed the note for $3,500, dated September 28, 1916, and the trust deed to James E. O'Brien to secure its payment; that they received no consideration whatever therefor; that William B. O'Brien is not the holder and owner of the note and trust deed; that these instruments are not a charge upon her interest in the property; and that they were made without consideration and are wholly null and void. The answer concludes with the denial that Hardin is entitled to the relief sought.

John J. Wolf by his answer claims an inchoate right of dower in his wife's interest in the premises, and avers that her answer is true, and that he adopts it. William B. O'Brien also filed an answer, in which he stated that he holds and owns the promissory note for $3,500 and the trust deed to James E. O'Brien which secures its payment, and that no part of the interest on or principal of the note has been paid. By his answer he admits the allegations of the amended bill of complaint, and avers that Hardin is entitled to the relief which he seeks.

Replications were filed to the several answers. The cause was referred to a master in chancery, who heard and reported the evidence, with his findings, and recommended a decree of partition. Objections and exceptions to the master's report were overruled, and a decree of partition was entered, which, among other things, finds and declares that Hardin and Mary J. Wolf are the owners in fee simple as joint tenants of the premises in question; that the trust deed to James E. O'Brien, dated September 28, 1916, which secures the payment of the note for $3,500, is a valid first lien on the interest of Mary J. Wolf; that the note has not been paid, and that William B. O'Brien is the owner thereof. From that decree Mary J. and John J. Wolf, her husband, prosecute this appeal.

Before considering the merits of the instant case, disposition must be made of two preliminary contentions urged by appellee. They are: First, that the decree from which the appeal is prosecuted is not a final decree; and, second, that a freehold is not here involved.

[1] In support of the first contention it is argued that there is no appealable decree in a partition suit until the commissioners appointed have made their report. By the decreeunder review the interests of the several parties to the suit are ascertained and declared, and commissioners to make partition are appointed. A decree which finds and declares the several interests of the parties, and appoints commissioners, is a final and appealable decree. Clawson v. Ellis, 286 Ill. 81, 121 N. E. 242;White v. Van Patten, 280 Ill. 215, 117 N. E. 472;Lantz v. Lantz, 261 Ill. 194, 103 N. E. 749;Ellguth v. Ellguth, 250 Ill. 214, 95 N. E. 169.

[2] With reference to the second contention, Mary J. Wolf and appellee hold title to the property, either in joint tenancy, subject to certain conditions, or, by operation of law, as tenants in common. If partition should be effected, the title of each cotenant is transferred to the parcel allotted to him, and, in the event that the real estate cannot be divided, a sale follows, which transfers the estate and title of all the cotenants to the purchaser. The subject-matter of this suit is a freehold estate, and a freehold is necessarily involved. Schwartz v. Ritter, 186 Ill. 209, 57 N. E. 887;Wilson v. Dresser, 152 Ill. 387, 38 N. E. 888;Bangs v. Brown, 110 Ill. 96.

The evidence shows that appellee purchased the lot in question, now known as 1115 Roosevelt road, Chicago, in June, 1883. In the following year he improved the lot with a two-story brick building, which, as re-modeled, is now situated upon it. At that time appellee was married and had six children. He resided with his family on the second floor of the building and occupied the first floor to conduct his undertaking business. Mary J. Wolf, appellee's daughter, was married to John J. Wolf in the year 1889. For 2 or 3 years following their marriage they occupied a separate home, but early in the year 1902 they moved to appellee's apartment, and have since resided there with him. Mrs. Wolf worked for her parents, and John J. Wolf was employed by appellee to assist him in his undertaking business. Appellee's wife had two insurance policies upon her life, aggregating $1,800, in which her daughter, Mrs....