Kulik v. Kapusta

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Kulik v. Kapusta, 303 Ill. 208, 135 N.E. 402 (Ill. 1922)
• Decision Date: 08 June 1922
• Docket Number: No. 14519.,14519.
• Parties: KULIK v. KAPUSTA.

303 Ill. 208

135 N.E. 402

KULIK

v.KAPUSTA.

No. 14519.

Supreme Court of Illinois.

April 19, 1922.

Rehearing Denied June 8, 1922.

Suit by Jacob Kulik against John Kapusta. From a decree dismissing the bill for want of equity, after demurrer was sustained to the second amended bill, and complainant elected to stand upon the bill, complainant appeals.

Reversed and remanded.

Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

Charles A. Koepke and John W. Ellis, both of Chicago (William F. Struckmann, of Chicago, of counsel), for appellant.

Bradley, Williams, Kearns & Farrell, of Chicago (Thomas E. D. Bradley and Edward J. Farrell, both of Chicago, of counsel), for appellees.

CARTER, J.

This was a bill filed in the circuit court of Cook county to recover title to certain improved real estate in Chicago and asking that the court hold a conveyance in the form of a deed to be a mortgage given to secure certain loans. The amended bill was dismissed on demurrer for want of equity, and an appeal was taken from that decretal order to this court.

To the original bill filed in this case, a demurrer was sustained, and an amended bill was then filed, to which also a demurrer was sustained. Thereafter leave was granted by the court to file instanter another amended bill, to which a general demurrer was filed, and after a hearing the demurrer was sustained, and appellant electing to stand by the bill, the court entered a decree dismissing the bill for want of equity.

The last amended bill stated, in substance, that appellant acquired title to the premises in controversy by warranty deed in 1916, subject to a mortgage of $19,000, and executed a second mortgage to secure $5,750, a part of the purchase price; that thereafter appellant made extensive alterations and repairs on the premises for which he was unable to pay, with the result that numerous mechanics' lien claims were filed and judgments obtained against him, which became clouds upon the title and prevented him from negotiating new loans thereon; that, in November, 1917, he conveyed the premises in trust to Stanley Slomczynski, who at appellant's direction conveyed the same to Agata Kulik, appellant's wife; that Agata Kulik and appellant conveyed the premises in trust to Kazimierz Siedlanka, who in March, 1919, executed a deed in blank, and delivered it, so executed, to appellant; that appellant, during 1918, and especially in the early part of 1919, was in poor health and confined to his home and bed for a considerable portion of the time with rheumatism; that appellee, John Kapusta, during the same period was a grocer, a man of means, and a close personal friend and neighbor of appellant; that, while so confined to his home, appellant detailed his financial troubles to appellee and asked him to make a loan sufficient to pay the second mortgage and the lien claims and judgments, and to this end offered to execute notes and secure the same by mortgage on the premises; that appellee informed appellant that he would not make a loan in the usual manner because of the condition of the title and because the amount of money he would be called upon to advance was indefinite, and proposed that he would advance all the money needed if appellant would cause the premises to be conveyed to him, place him in possession, and permit him to use the income with which to keep the taxes and first mortgage interest paid, and, so far as the same would permit, apply the remainder in reduction of the advancements to be made for appellant's benefit, and that such advancements by him should be repaid by appellant within a reasonable time, with interest at 7 per cent.; that appellantaccepted the offer, and thereupon informed appellee that he had in his possession a deed to the premises executed in blank by Siedlanka, and that he would, and did thereupon, without other or further consideration and with the express agreement that appellee should hold title as security only, cause to be filled in the deed the name of appellee as grantee; that he thereupon delivered the deed to appellee, who caused it to be recorded and then took possession; that the premises are producing a rental of upwards of $500 per month, all of which appellee has applied to his own use without accounting therefor to appellant; that, notwithstanding the agreement pursuant to which his name was inserted in the deed and he was placed in possession, appellee has failed to satisfy the lien claims and judgments; that the appellee purchased for $900 the second mortgage, which he agreed to have released, but has refused to satisfy and release the same; that, after so acquiring title, he informed appellant that, having entered into no written agreement, he intended to hold the title and possession adversely to appellant without paying him anything therefor; that he has from time time offered appellant small sums for a quitclaim deed and has declined to advance money to pay the liens and judgments or otherwise comply with the agreement; that he has in no way complied with his agreement, and because thereof appellant seeks in equity to have the deed canceled; that the premises have greatly enhanced in value, and appellee now asserts that appellant has parted with all his interest therein and declines to recognize his equities or account to him; that, by reason of the foregoing, appellant is unable to procure a new loan and satisfy the liens and judgments or make sale of the premises; that he has been so harassed by the judgments since the record of the deed to appellee, that he has been compelled to advance large sums of money to pay and satisfy certain of the judgments, and is now being pressed for payment for...