Joslyn v. Joslyn

• Decision Date: 11 May 1944
• Docket Number: No. 27408.,27408.
• Citation: 54 N.E.2d 475,386 Ill. 387
• Parties: JOSLYN v. JOSLYN et al.
• Court: Illinois Supreme Court

386 Ill. 387

54 N.E.2d 475

JOSLYN

v.JOSLYN et al.

No. 27408.

Supreme Court of Illinois.

March 21, 1944.

Rehearing Denied May 11, 1944.

Proceeding by M. L. Joslyn and others against Charlotte C. Joslyn, individually, and as next friend of Joy Lou Joslyn, and others, to foreclose a trust deed, wherein the named defendant filed a cross-complaint against George R. Joslyn. From a judgment of the Appellate Court, 318 Ill.App. 643, 48 N.E.2d 445, affirming a decree of the circuit court foreclosing a trust deed executed by named defendant, individually, and her then husband, and dismissing named defendant's counterclaim, the named defendant appeals, by leave granted.

Affirmed in part and reversed in part, and remanded, with directions.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Thomas Hart Fisher, of Chicago (Norman Crawford, of Chicago, of counsel), for appellant.

Lewis D. Clarke, of Waukegan, guardian ad litem.

G. B. Sturtz, of Chicago, and Ernest S. Gail, of Highland Park, for appellee M. L. Joslyn.

Hubbard, Baker & Rice, of Chicago (Alvin Glen Hubbard, of Chicago, of counsel), for appellee George R. Joslyn.

STONE, Justice.

Appellant, individually and as next friend of her four minor children, together with the guardian ad litem of said children, by leave granted, appeals from a judgment of the Appellate Court, Second District, affirming a decree of the circuit court of Lake county, foreclosing a trust deed securing notes aggregating $20,000, executed by appellant, individually, and her then husband, and dismissing appellant's counterclaim.

Prior to September 15, 1937, George R. Joslyn occupied the premises known as 616 Center avenue, Lake Bluff, Illinois, under a lease, which contained an option to purchase. On the date above stated, George R. Joslyn exercised the option and purchased the property for $29,000, and a contract for a deed was executed, $4000 being paid on the purchase price. Later $5000 cash was paid and a loan negotiated with the Joslyn Investment Corporation for 20,000, to pay the balance of the purchase price. On March 11, 1938, the owner executed a warranty deed conveying the premises to Charlotte C. Joslyn, appellant. On April 12, 1938, appellant and her husband George R. Joslyn executed four notes payable to bearer, viz., three for $1500 each, due April 12, 1940, 1941, and 1942, respectively, and one for $15,500 due April 12, 1943, with interest at six percent per annum, payable semi-annually. The interest was evidenced by interest coupons. All of the notes were payable at the office of the Joslyn Investment Corporation. To secure the payment of these notes, appellant and her husband executed and delivered a trust deed, conveying the premises to the Chicago Title and Trust Company, together with the rents, issues and profits thereof. George R. Joslyn paid the interest notes due October 12, 1938, and the 1938 taxes on the property. There was default in the payment of the interest notes due April 12 and October 12, 1939, and on January 25, 1940, Joslyn Investment Corporation wrote a letter to appellant's attorney advising him of the default in the payment of interest due, stating that the corporation had discussed with its attorney the matter of foreclosure, and as the notes contained an acceleration clause, the owner and holder of the notes and mortgage (Joslyn Investment Corporation) declared the entire indebtedness due and payable as of the date of the letter. Shortly thereafter this action to foreclose the trust deed was filed by M. L. Joslyn, father of George and president of Joslyn Investment Corporation, against the appellant Charlotte C. Joslyn, George R. Joslyn, Chicago Title and Trust Company, and one L. Olsen, a caretaker in possession.

Appellant made a demand for a bill of particulars of the following matters: (1) The interst of Joslyn Investment Corporation in the mortgage sought to be foreclosed; (2) the relative rights of M. L. Joslyn, plaintiff, and the corporation, and (3) the identity of the person of neuter gender referred to in paragraphs 8, 9 and 11, and in paragraph (e) of the prayer of the complaint. Plaintiff's attorney filed a bill of particulars stating (1) that Joslyn Investment Corporation had no interest in the trust deed; (2) that plaintiff M. L. Joslyn is the legal owner and holder of the note and trust deed, and (3) the identity of the person of neuter gender in the complaint is the plaintiff M. L. Joslyn.

George R. Joslyn by his answer admitted the execution and delivery of said notes and trust deed. Appellant by her answer admitted the execution and delivery of the notes and trust deed and her ownership of the record title to the premises in question, but denied that she or her husband were liable for the payment of said indebtedness on February 14, 1940, and that George R. Josyln had become the lawful owner of said notes, and charged that plaintiff was trustee for George R. Joslyn pursuant to a conspiracy.

She also alleged that a written agreement was entered into between herself and her then husband, George R. Joslyn, on June 12, 1938, in which her husband agreed to pay the notes secured by the trust deed, to procure a policy of insurance upon his life in the sum of $20,000, and keep the same in force to pay the unpaid portion of said mortgage, said policy to be payable upon his death to the owner and holder of said notes secured by said mortgage. The answer also alleged that this proceeding should be enjoined; that should foreclosure be decreed, a judgment should be entered against George R. Joslyn and collected against his separate estate, and should the property be sold in foreclosure, a judgment should be entered against George R. Joslyn for the sum of $35,000, the market value of the said premises. The answer also denied that the plaintiff is the owner or holder of said promissory notes and interest coupons attached thereto, or of the trust deed securing the same.

Appellant also filed a counterclaim in her own behalf and as next friend of her four named children, against plaintiff M. L. Joslyn, George R. Joslyn and Chicago Title and Trust Company, setting out the agreement of June 12, 1938; alleged that George R. Joslyn by that agreement agreed to hold her harmless from all liability and obligation arising by virtue of the notes and trust deed; that she executed and delivered said notes and trust deed by virtue of said understanding and agreement, oral at the time of executing the notes and trust deed and on June 12, 1938, reduced to writing; also alleging her reliance thereon, and charged that George R. Joslyn had paid and discharged the indebtedness.

The counterclaim also alleged that subsequent to April 12, 1938, George R. Joslyn and M. L. Joslyn entered into an unlawful conspiracy with the intention and for the purpose of causing George R. Joslyn to breach his said agreement with her, and to deprive her of the real estate described in said complaint; alleged that M. L. Joslyn did not own the notes and trust deed, and in the event the court should determine that M. L. Joslyn did own the notes, said ownership of them was held by said M. L. Joslyn exclusively for the benefit and account of George R. Joslyn and Charlotte C. Joslyn, and said notes and trust deed should be forthwith delivered up and cancelled, all indebtedness thereon having been fully discharged and paid; that in the event the court should determine that plaintiff is the owner or holder of any part of the indebtedness represented by said notes and trust deed, and that any part thereof has not been paid, that said George R. Joslyn was on the date of filing of the complaint and now is, amply solvent and well able to pay and discharge all the liability against said premises, which he promised to pay and discharge, and that she is entitled to a judgment against George R. Joslyn for the full amount of any liability arising under said notes and trust deed, or constituting a charge or lien upon said premises, and no relief should be granted against her, and that in case it is determined that the plaintiff M. L. Joslyn is entitled to any relief, such relief should be reduced to a monetary judgment against George R. Joslyn.

The conterclaim also charged that counterclaimant's four children are third party beneficiaries under the written agreement and are entitled, as against both M. L. and George R. Joslyn, to a decree requiring the latter to pay and discharge any indebtedness against said premises, and to have their rights in and to said premises adjudged and decree pursuant to said agreement of June 12, 1938. She alleges performance of each and every obligation required of her under said agreement of June 12, 1938, and that in the event the court decrees foreclosure of said trust deed and she be deprived of her interest in said premises, then she is entitled to a decree against George R. Joslyn and M. L. Joslyn, or either of them, for the full market value of said premises, which she alleged to be $35,000, and that she is entitled to judgment for said amount.

Plaintiff M. L. Joslyn replied to appellant's answer to the complaint and in answer to the counterclaim denied each and every allegation thereof. George R. Joslyn, in his answer to the counterclaim, admitted the execution of the agreement set out in the counterclaim and alleged that appellant immediately after the execution thereof refused to be bound by said agreement and repudiated the same continuously and at all times; that he offered to perform the same but she at all times declared the same to be void; that on September 26, 1938, she filed in the circuit court of Lake county a suit for separate maintenance, and for the express purpose of setting aside the said agreement. He also alleged that on October 31, 1940, the superior court of Cook county, by its decree, granted Charlotte C. Joslyn a divorce from him and therein fixed each and all of her rights...