Lowden v. Wilson

• Decision Date: 09 April 1908
• Citation: 233 Ill. 340,84 N.E. 245
• Parties: LOWDEN v. WILSON.
• Court: Illinois Supreme Court

233 Ill. 340

84 N.E. 245

LOWDEN

v.WILSON.

Supreme Court of Illinois.

Feb. 20, 1908.

Rehearing Denied April 9, 1908.

Error to Superior Court, Cook County; W. M. McEwen, Judge.

Bill to remove cloud from title, by Katherine Lowden against John C. Wilson. From a judgment for plaintiff, defendant brings error. Affirmed.William Slack, for plaintiff in error.

John F. Mahon, for defendant in error.

CARTER, J.

This is a writ of error to review a decree of the superior court of Cook county setting aside a quitclaim deed to the plaintiff in error of an undivided one-third interest in certain premises in the city of Chicago as a cloud upon the title of defendant in error to the whole of said premises.

The lot in question, prior to March 18, 1903, was owned by one Albert Kneblewicz, subject, however, to a mortgage to the St. Joseph Building & Loan Association, which was then being foreclosed. It appears that in December, 1902, Kneblewicz and his wife entered into an agreement with plaintiff in error and another attorney that the attorneys should represent the former in the foreclosure proceeding and receive as their fees one-third of such sum as might be saved over and above the claim of said building and loan association on said premises. Kneblewicz and his wife were Polish people and could not talk English. At the time of this arrangement their son-in-law interpreted for the parties and agreed with plaintiff in error and his associate that he would pay them $5 a month on their fees, and did pay $25 or $30 in that manner, but, evidently tiring of this arrangement, he brought the parties together again, with the result that Kneblewicz and his wife deeded to plaintiff in error an undivided one-third interest in the premises for services as attorney in said proceedings. The testimony, however, is very conflicting as to whether this deed was intended as an absolute conveyance or merely contingent upon the successful outcome of the suit in Kneblewicz's favor. The foreclosure was being resisted on the ground that the original papers therein were defectively acknowledged, and that Kneblewicz still retained the homestead interest. The evidence shows that the premises were worth about $1,000. The testimony is also conflicting as to just how much of the consideration of the deed was included for services already rendered and how much was for services yet to be performed. The deed to Wilson was not filed for record until October 28, 1904. There is nothing in the record to show why there was this delay in recording, or what led to the deed being recorded when it finally was.

The foreclosure proceedings against the premises were being conducted in favor of the building and loan association by their attorney, Piotrowski, who is a brother-in-law of defendant in error. June 16, 1904, Kneblewicz and his wife executed to defendant in error a quitclaim deed to the whole of the premises in question for a consideration of $150. This consideration was not paid in cash, but by check signed by Piotrowski, which was deposited in trust with one Wiengierski. At the same time an agreement was signed by Kneblewicz and his wife and defendant in error by which it was agreed that the check in question should be held in escrow, along with the agreement, until Kneblewicz vacated the premises, and that the latter should pay rent until he surrendered the premises at the rate of $10 per month. It is not clear from this record whether defendant in error signed this contract herself or by attorney. She was not present at the time the papers were drawn. Her testimony is to the effect that her husband acted as agent for her in this transaction, and that through him she turned over to Piotrowski the $150 before Piotrowski gave the check in question. This is also testified to by Piotrowski and is not denied by any one. Piotrowski testified that he advised the defendant in error's husband to employ Attorney Wood to act for the defendant in error as to the examination of the title and the settling of legal matters in connection with the purchase of the property. Wood occupied a suite of offices with Piotrowski, but was not, so far as the record discloses, associated with him in any other way in the law business. This check was never paid in cash to Kneblewicz, but was delivered by him to Piotrowski November 4, 1904, and Kneblewicz given credit for rent for occupying said premises and also given credit for about $10 attorney's fees to Piotrowski.

Kneblewicz did not give up possession of the premises in question until forcible entry and detainer proceedings had been started by defendant in error and judgment obtained against him in September, 1904. It appears that at this time he signed a lease with defendant in error to pay rent for the premises at the rate of $10 per month, and that some of this rent, as well as rent previous to the time of signing the agreement of June 16th, was paid, as aforesaid, out of said check. The only testimony in the record as to the reason why the check was not cashed at the time this lease was made is that arrangements could not be made to bring Kneblewicz, his son-in-law, and Wiengierski together so that the check could be delivered up and the whole matter disposed of; the son-in-law's presence being desired so that he could interpret for and advise his father-in-law. The deed to defendant in error was recorded June 16, 1904, the same day it was executed. She testified that the money used for the purchase of the lot was her own, a part of which she had before marriage, and the rest of which she received from her parents; but she did not appear to have a clear idea of the details of the various transactions, stating that her husband had acted for her. It is clear that the defendant in error, through her husband acting as agent, received the quitclaim deed from Kneblewicz and wife with the understanding that there was a building and loan association mortgage on the premises which could be taken up for about $500, and that Jacob Glos had a tax deed on the premises dated September 18, 1899. There was some talk as to the amount for which this tax deed title could be cleared up at the time the quitclaim deed was given to the defendant in error, but the exact amount necessary therefor was not then ascertained. Glos gave a quitclaim deed to the property to one Mohrman, August 11, 1904, and thereafter, October 22, 1904, Mohrman gave a quitclaim deed to defendant in error, receiving therefor in the neighborhood of $300. September 15, 1904, the defendant in error purchased the interest of said building and loan association in said property, paying therefor between $400 and $500. The evidence is not definite as to the amount.

This bill was filed by defendant in error at the April term, 1905, of the superior court of Cook county, and answer and cross-bill were filed by plaintiff in error. After various amendments to the pleadings, the cause was referred to a master in chancery to take evidence, who reported that plaintiff in error's deed was for a contingent fee for servicesand was in the nature of a mortgage; that the quitclaim deed to defendant in error was based on a good and valuable consideration; that at the time of the execution and delivery of the deed to her she had no actual or constructive notice of the deed to Wilson; that the indebtedness of the loan association secured by trust deed and the tax deed to Glos were valid; that the respective interests of these parties were vested, at the time of the hearing, in defendant in error, and she had paid for the property about the sum of $1,000; and that the consideration of the deed to plaintiff in error had failed, and the deed should be set aside as a cloud upon the title of defendant in error. Exceptions were filed to this report, substantially all of which the court overruled and entered a decree with practically the same findings as set forth in the master's report, excepting that the decree held that the deed to plaintiff in error was valid and based on a good consideration for legal and professional services, but that, as defendant in error had obtained title without actual or constructive notice of said deed, it should be set aside and declared null and void as against defendant in error's interest and as a cloud upon her title, and that the cross-bill be dismissed for want of equity. Plaintiff in error insists that the bill in cases of this kind must state, among other things, the consideration, with the distinct averment that ‘it was bona fide and truly paid, independently of the recital in the deed,’ and that this bill failing to do so, is fatally defective, citing in support of this contention, Brown v. Welch, 18 Ill. 343, 68 Am. Dec. 549,Moshier v. Knox College, 32 Ill. 155,Keys v. Test, 33 Ill. 316,Boone v. Chiles, 10 Pet. (U. S.) 177, 9 L. Ed. 388,Johnson v. Georgia Loan & Trust Co., 141 Fed. 593, 72 C. C. A. 639, and other cases of the same import. Plaintiff in error is not in position to raise the point. The defect, if any, is simply in the form of the pleading, and if not taken advantage of by demurrer it is waived. 1 Daniell's Ch. Pl. & Pr. (6th Am. Ed.) p. 582; Dupuy v. Gibson, 36 Ill. 197;Fisher v. Stone, 3 Scam. 68;Judson v. Stephens, 75 Ill. 255. Had the objection been made on the hearing, the defect, if any, could have been been obviated by amendment. Kuchenbeiser v. Beckert, 41 Ill. 172;Holman v. Gill, 107 Ill. 467. Neither the answer nor cross-bill of plaintiff in error raises this question of...