Kosturska v. Bartkiewicz

• Decision Date: 26 October 1909
• Citation: 89 N.E. 657,241 Ill. 604
• Parties: KOSTURSKA v. BARTKIEWICZ.
• Court: Illinois Supreme Court

241 Ill. 604

89 N.E. 657

KOSTURSKA

v.BARTKIEWICZ.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Superior Court, Cook County; A. C. Barnes, Judge.

Action by Salomeja Kosturska against Peter Bartkiewicz. From a decree for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss bill.

Edward R. Litzinger, for appellant.

Beach & Beach and Otto H. Beutler, for appellee.

DUNN, J.

This appeal is from a decree of the superior court of Cook county setting aside a deed from appellee to appellant. The reason alleged for setting aside the deed is that it was never signed or acknowledged by the grantor or by her authority. It is further alleged that, if the deed does bear the genuine signature of the appellee, such signature was obtained by fraud, circumvention, and overreaching of appellee, without her knowledge or understanding of the contents of the instrument, or that she was signing a deed, and without any intention on her part to sign or acknowledge a deed. The appellee, Salomeja Kosturska, was born and reared in Austria, and neither speaks nor understands the English language. She came to this country in 1901, and on July 8 arrived at the home of her daughter, Walentyna Olsztynska, in Chicago, where she has ever since resided. The day after her arrival the premises on which the daughter resided, and which she owned, were conveyed to the appellee by her daughter and the latter's husband for an expressed consideration of $2,400. The appellee and her daughter and her daughter's family continued to reside together upon the premises until the daughter and her husband died, in 1907, since which time appellee and appellant, who is her grandson, have occupied the premises together. On June 7, 1905, the appellee executed to the appellant and to his brother, Victor Bartkiewicz, who were her daughter's sons, a deed conveying said premises to them as joint tenants, and not as tenants in common. It is this deed which the bill seeks to set aside. Victor Bartkiewicz has died since the deed was made.

There is a disagreement as to the reason of the making of the deed to appellee by her daughter. It is claimed by the appellant that the property was conveyed by his mother to his grandmother in trust for himself and his brother, while the appellee testified that she brought from Austria with her 1,200 gulden, alleged by the bill to be equivalent to $576, which she gave to her daughter, and her daughter told her she was willing the house to her. Whatever may have been the motive for the conveyance, appellee acquired by it an indefeasible title to the premises, of which she could be deprived only by her own act. The chancellor found that the deed sought to be canceled bore the genuine signature of the appellee, but that she placed such signature to the deed without knowledge or understanding that she was signing a deed. Attached to the deed is the certificate of a notary public in the statutory form, showing the acknowledgment of the grantor in the usual way. There is no evidence tending to show that the appellee did not understand that she was signing a deed, except her own testimony. She testified that she remembered nothing about signing a deed, or what was said at the time, because she was sick, but that her mind was clear, and she did not lose it. Wilkoscheski, the notary public who certified to the acknowledgment of the deed, testified that the appellee was sick and in bed at the...