Lewis v. McGrath

• Decision Date: 19 June 1901
• Citation: 191 Ill. 401,61 N.E. 135
• Parties: LEWIS v. MCGRATH et al.
• Court: Illinois Supreme Court

191 Ill. 401

61 N.E. 135

LEWIS

v.MCGRATH et al.¹

Supreme Court of Illinois.

June 19, 1901.

Appeal from circuit court, Cook county; Harry Higbee, Judge.

Suit by Mary L. McGrath and others against Oscar A. Lewis. From a decree in favor of complainants, defendant appeals. Affirmed.Pease & Polkey (H. T. Helm, of counsel), for appellant.

Willis Smith, for appellees.

This is a bill in chancery, filed on May 26, 1892, in the circuit court of Cook county, by Mary T. McGrath, Nellie McGrath-Hallinan, John T. McGrath, Katie McGrath-Hynes, Thomas E. McGrath, and Anastasia McGrath, as heirs at law of Mary McGrath, deceased, against John Waddington, Jr., and James J. McGrath, their father, to cancel two deeds purporting to convey the title to lots 24, 25, and 26, in block No. 5, in David S. Lee's addition to Chicago, Cook county, Ill.,-one of said deeds bearing date November 13, 1880, and purporting to have been made and executed by said Mary McGrath and James J. McGrath, her husband, to one John Waddington, Jr., and which was filed for record in the recorder's office of Cook county on the 2d day of April, 1881; the other of said deeds bearing date March 29, 1881, and purporting to have been made and executed by said John Waddington, Jr., and Mattie E. Waddington, his wife, to James J. McGrath, which was filed for record in the recorder's office of Cook county on the 2d day of April, 1881. John Waddington, Jr., having failed to answer said bill, was defaulted. On the 3d day of January, 1898, James J. McGrath and Mary McGrath, his wife by a subsequent marriage, conveyed said premises to Oscar A. Lewis by deed, which was filed for record in the recorder's office of Cook county February 14, 1898. On the 24th day of November, 1899, said James J. McGrath died, and subsequently thereto said Mary McGrath, Mary McGrath as administratrix of James J. McGrath, deceased, and Oscar A. Lewis, were made parties defendant to said bill of complaint, and adopted as their answers to said bill the answer of James J. McGrath theretofore filed thereto. A replication having been filed to said answer, the cause was referred to a master in chancery to take proofs and report his conclusions as to the law and the facts. The master, after having overruled the objections of Oscar A. Lewis to his report, found in favor of the complainants, which report was approved and confirmed by the court after overruling said objections, which had been renewed as exceptions to said report, and a decree was entered granting the relief prayed for, and canceling said deeds as clouds upon the title of complainants, and finding that Oscar A. Lewis had been in possession of said premises since the 3d day of January, 1898, without right, and that he should account to the complainants for such use and occupation, the rights of complainants to such accounting being reserved for a further reference to the master; from which decree Oscar A. Lewis has prosecuted this appeal.

The master in chancery found the facts substantially as follows: On May 1, 1872, Mary Lee Stewart conveyed by deed to James J. McGrath said lots, which deed was filed for record in the recorder's office of Cook county on June 6, 1872. On January 6, 1876, said James J. McGrath and Mary McGrath, his wife, conveyed by deed to John F. Browne said lots, which deed was filed for record in the recorder's office of Cook county on April 7, 1876. On March 16, 1876, said John F. Browne conveyed by deed to Mary McGrath, the wife of James J. McGrath, said lots, which deed was filed for record in the recorder's office of Cook county on April 7, 1876. Said premises, prior to and at the time of the execution of said two last-mentioned deeds, were occupied by the said James J. McGrath and Mary McGrath and their children as a homestead, and they continued so to occupy the same until the death of said Mary McGrath, which occurred on November 25, 1880. After the death of said Mary McGrath, for a number of years the said James J. McGrath and his children, the complainants, continued to occupy said premises as a homestead, after which the said James J. McGrath continued to make said premises his home until his death. Some time after the death of said Mary McGrath said James J. McGrath married one Belinda Keriwn, by whom he had a number of children. Thereafter the said Belinda Kerwin departed this life, and the said James J. McGrath married Mary Lonergan, who survives him, and who, on December 4, 1899, was appointed by the county court of Cook county administratrix of the estate of James J. McGrath, deceased, and duly qualified as such. About the time when said premises were conveyed by the said James J. McGrath and wife to said Browne, and by said Browne to said Mary McGrath, the said James J. McGrath was in the distillery business, and was obliged to give a bond of $60,000 to the government, and the said Browne was one of the sureties on that bond. Being unable to qualify as such surety, said McGrath and wife conveyed said premises to Browne for the purpose of enabling him to qualify on the bond, and the deed of conveyance was received by Browne for that purpose. No consideration was paid for the conveyance by Browne, and it was made to Browne with the understanding that he would convey said premises, upon request, to Mary McGrath, wife of said James J. McGrath. About the time said bond was given and accepted, there was trouble between McGrath and the government on the charge of defrauding the government out of the revenue on certain whiskies sold by him, when James J. McGrath suggested to Browne that said premises be conveyed to Mary McGrath, so they would be secure against any claim of the government should suit be brought upon said bond. Thereupon, and in response to said suggestion, the said Browne executed and delivered said deed to said Mary McGrath. On August 30, 1878, said James J. McGrath filed his petition in bankruptcy in the United States district court for the Northern district of Illinois. In said bankruptcy proceeding, and with said petition, James J. McGrath filed a schedule of all his debts, and an inventory of all his property and assets; but in said inventory he did not inventory or mention the real estate in question. About six weeks prior to her death, the said Mary McGrath, who was suffering from a tumor, submitted to a surgical operation, she and her family being advised by their family physician that that was her only chance to recover. For a few days after the operation she appeared to be slightly better, but soon became worse, and from the time of said operation until her death never left her bed. During all the time intervening between said surgical operation and her death Mary McGrath was unable to rise from her bed, had little or no use of her hands, and for about two weeks prior to her death could retain no solid food, and was unconscious a considerable portion of said time. On March 1, 1881, James J. McGrath, in an affidavit made and filed in said bankruptcy proceedings, swore ‘that he has not willfully sworn falsely in his affidavit annexed to his petition, schedule, or inventory filed in this case; * * * that he has not concealed any part of his estate or effects.’ The answer of the said James James J. McGrath, which was adopted by the defendants Mary McGrath and Oscar A. Lewis, in reference to the deed purporting to have been made and executed by the said Mary McGrath, deceased, and the said James J. McGrath, to said John Waddington, Jr., alleges as follows, viz.: ‘The said Mary McGrath and this defendant united in a quitclaim deed conveying the said premises to John Waddington, Jr., the said quitclaim deed being then delivered by said Mary McGrath to this defendant for the uses and purposes last herein mentioned, and being retained in the possession of this defendant until the same was filed by this defendant for record, along with a warranty deed executed by the said John Waddington, Jr., and Mattie E. Waddington, his wife, and dated on the 29th day of March, 1881, in and by which said deed the said John Waddington, Jr., and his said wife, in carrying out and executing the trust in behalf of this defendant, as hereinbefore set forth, conveyed the said premises to this defendant, and both of said deeds last mentioned were by this defendant on the 2d day of April, 1881, filed in the office of the recorder of said county for record, and were duly recorded; * * * that it is not true, and he therefore denies, that the said instrument purporting to be the deed of said Mary McGrath is not, nor was, the deed of said Mary McGrath, and that she never made, executed, nor delivered the same, and that the name of...