Lisner v. Chicago Title & Trust Co.

• Decision Date: 07 November 1977
• Docket Number: No. 77-1005.,77-1005.
• Citation: 439 F. Supp. 1242
• Parties: Audrey Bride LISNER, Jacqueline Marie Lisner, and Jannette Alecia Lisner, Plaintiffs, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee under Trust Number 47554, and Jack A. Coney, Defendants.
• Court: U.S. District Court — Southern District of Illinois

439 F. Supp. 1242

Audrey Bride LISNER, Jacqueline Marie Lisner, and Jannette Alecia Lisner, Plaintiffs, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee under Trust Number 47554, and Jack A. Coney, Defendants.

No. 77-1005.

United States District Court, S. D. Illinois, Northern Division.

November 7, 1977.

Hamilton Smith and Mark L. Yeager, Chicago, Ill., Thomas B. Kennedy, Sr., Peoria, Ill., for plaintiffs.

Richard H. Radley, Charles G. Roth, Peoria, Ill., for defendants.

DECISION AND ORDER

ROBERT D. MORGAN, Chief Judge.

This complaint for declaratory judgment seeks to avoid the apparent legal consequences of a warranty deed, recorded in Woodford County, Illinois, which purports to have been executed by plaintiff Audrey Bride Lisner, hereinafter "Audrey."¹ The defendant, Chicago Title and Trust Company, as Trustee, hereinafter "CT," is the grantee named in said deed. The defendant Coney is the beneficial owner of the trust estate therein represented. Jurisdiction is invoked under 28 U.S.C. § 1332, diversity of citizenship between the parties being alleged.

The complaint arises from the following facts. Audrey's uncle, Nicholas Bride, died, testate, on August 14, 1957, seized of the Woodford County real estate in issue. Under a codicil to his will, he devised the real estate to his brother, Isadore Bride, for life, and, successively, to Audrey for life, with remainder over to Audrey's children. That codicil provided that the realty be held in trust for Audrey until she reached her age of 25 years, should Isadore die before she reached that age. Continuing, the codicil gave to Audrey a power to convey the fee interest after "she shall have attained the age of twenty-five years and become entitled, also, to the income from such real estate." The warranty deed in issue, which recites that it is made pursuant to that power of sale, purports to convey the realty subject to the life estate in Isadore. It was recorded on December 10, 1964. Audrey attained her age of 25 years on July 4, 1962. Isadore is yet living, his age being approximately 96 years.

Defendants moved to dismiss the complaint upon the ground that it does not state any claim upon which relief can be granted. That motion is, in part, supported by affidavits as to facts outside the pleadings and therefore stands, under Rule 12(b), as a motion for summary judgment. Plaintiffs have filed a countermotion for a summary judgment declaring the deed void. The cause is now before the court upon those motions.

The complaint can be most intelligibly summarized by proceeding from a recital of the prayer for a declaratory judgment, alternatively:

a. That Audrey did not have the power to convey the real estate under the Will of Nicholas until after the death of Isadore, and that therefore the recorded warranty deed is void; or

b. That the signatures on the recorded deed "are not genuine"; or

c. That Audrey "was overreached in transferring her interest in the property" and that the deed is voidable.

The body of the complaint must be characterized as evasive. It does contain the well-pleaded facts that Nicholas died seized of the real estate, that the codicil to his will created the successive life estates and the power of sale, that Audrey reached her age of 25 years on July 4, 1962, that Isadore is yet living, and that the minor plaintiffs are Audrey's only children, and that the challenged warranty deed was recorded on December 10, 1964. It further asserts the position that Nicholas, by the said codicil, intended that the power of sale could not be exercised by Audrey until the death of Isadore.

All other allegations are conclusive and evasive of any intelligible factual statement. Thus, it is alleged that Audrey "was overreached" by unidentified persons acting in concert with Coney in 1964, and that "she was persuaded to execute a quitclaim deed" conveying her interest in the realty to some person other than CT in exchange for the sum of about $12,000, which sum "represented a small fraction" of the then value of Audrey's interest, but that that deed was never recorded. It is further alleged that the recorded warranty deed "purports to have been signed by" Audrey, but "The signatures on the deed are not genuine."

It seems clear that the language of the complaint was designed to hint at the existence of some fraud and, potentially, the forgery of the recorded deed, although such accusations are not factually alleged. It seems equally certain that those allegations are wholly insufficient to state a fraud theory. If the complaint alone was before the court, dismissal is the indicated result. However, the complaint does not stand alone, and dismissal, though it be the easy course to follow, is not inclined to promote the achievement of justice.

In addition to the complaint, the court has before it affidavits and documentary evidence submitted in support of defendants' motion and certain depositions taken at the behest of plaintiffs. From these sources there emerges an uncontested factual picture as hereinafter narrated.

Nicholas executed a will in 1951. By the fifth clause of that will, he devised successive life estates to Isadore and Audrey. That clause also designated a trustee to manage the property for Audrey until she reached her age of 35 years, and created in her power to sell and convey the remainder interest after she reached her age of 50 years. The codicil, executed in 1953, deleted and replaced the fifth clause of the will. That codicil devised the real estate to Isadore for life and, successively, to Audrey for life, with remainder over to Audrey's children or, contingent upon there being no children, to the heirs of Nicholas. The codicil also contained the power of sale as above recited.

In November, 1964, Coney was approached by Henry B. Scherrer, a real estate broker in Peoria, Illinois, at which time Coney was advised that Audrey had employed Scherrer to sell her interest in the real estate and that John D. Thomason, who Scherrer described as Audrey's attorney, had suggested to Scherrer that Coney might be interested in buying. Scherrer also told Coney that he, Scherrer, was required to be absent from the area and was withdrawing from the sales listing, but that he would, if Coney desired it, show the property to Coney before leaving. Shortly thereafter, Coney, accompanied by Scherrer and Dr. J. P. Coney, Coney's father, did inspect the land. Coney then contacted Thomason and advised him that he, Coney, offered to purchase the realty for $13,500, subject to Isadore's life estate. Coney was told to contact a William V. Lowe, described as an agent for Audrey, at North Hollywood, California.

Coney advised Lowe by a telephone conversation of his offer to purchase. He was then told by Lowe that the matter would be referred to Audrey. On November 19, 1964, Coney received a handwritten letter from Audrey, dated November 17, 1964, stating, inter alia, that "I hereby approve the price of $13,500.00 as value in full for the remainder interest and fee title of the property," and that you may contact "Mr. John D. Thomason" to conclude the transaction.² Coney advised Thomason of the receipt of the letter and its contents, after which Coney and Thomason went to the office of CT to arrange for a title search and title insurance. When advised that CT required a copy of Audrey's birth certificate, Coney phoned Lowe. Thereafter, Audrey phoned Coney to advise him that the birth certificate was being mailed and that she approved the payment of the purchase price to Thomason, as her attorney. That certified copy, submitted with a brief handwritten note from Audrey, was received about November 26, 1964.

Upon receipt of the letter accepting the offer to purchase, Coney prepared a warranty deed for execution by Audrey, individually, and as attorney in fact for her estranged husband, conveying the premises to CT, as Trustee under Trust No. 47554. The prepared deed was delivered to Thomason for transmittal to his client. In early December, Coney was advised by Thomason that Audrey had stated to him, Thomason, that she would execute the deed and that the same would be personally delivered for her by Lowe to Thomason, at Peoria, for delivery at the time of closing.

On December 7, 1964, Coney met with Thomason, who was accompanied by a person then identified as Lowe, at the CT office. At that time, the deed, as recorded, was delivered to Coney in exchange for his check to Thomason, as attorney for Audrey, in the amount of $13,275.15, the net consideration after payment of costs of title insurance and documentary stamps. On December 10, 1964, the deed was recorded. Coney has never seen Audrey, and he met Lowe only at the time of closing.

Coney had never received any complaint from, or objection by, Audrey until a short time before January 14, 1977, the date upon which this complaint was filed.

Dr. Coney and Mr. Thomason are both now deceased.

The above recital of facts is taken largely from the affidavit of Coney and from exhibits thereto attached, including photocopies of the correspondence from Audrey, and of the cancelled check from Coney to Thomason, which was endorsed by Thomason, as attorney for Audrey, and presented for payment on the date which the same bears. Those facts are accepted as stating the factual background of this litigation, inasmuch as none are contested by any verified statement by Audrey or any other person. Indeed, in their most recent brief, plaintiffs seem to have abandoned their hints of fraud. Thus, plaintiffs now state that this case involves an "attempted execution" of a power before the power existed, and argue that "Audrey's attempted conveyance" is void.³

Against the factual background, the single issue, well pleaded, is the legal question whether the warranty deed delivered by Audrey did effectively convey the realty to Coney subject to Isadore's life estate. Decision of that question depends upon a determination as...