Morgan v. Owens

• Citation: 81 N.E. 1135,228 Ill. 598
• Parties: MORGAN v. OWENS.
• Decision Date: 23 October 1907
• Court: Illinois Supreme Court

228 Ill. 598

81 N.E. 1135

MORGAN

v.OWENS.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Suit by William L. H. Owens against Ivy Owens Morgan. From a decree for plaintiff, defendant appeals. Affirmed.George N. Morgan Lloyd G. Kirkland and John S. Huey, of counsel), for appellant.

Follansbee, McConnell & Follansbee (Henry M. Johnson and Ralph D. Stevenson, of counsel), for appellee.

CARTER, J.

The circuit court of Cook county on March 9, 1907, entered a decree setting aside a quitclaim deed executed by appellee, whereby he conveyed to his daughter, appellant, his interest in a house and lot in Chicago, on the ground of mistake, incapacity, and misrepresentation. From this decree appeal in taken to this court.

Appellee, William L. H. Owens, was married to Frances Johnson Owens in 1864, and there were born of the marriage five children-May, Amy, Guy, Roy, and Ivy, the latter being appellant herein. Appellee was a proofreader and printer. In 1888 his wife secured a divorce from him, and about that time he went to Louisville, Ky., where he still resided at the time of the hearing in this case. Except during a few years, when Roy and Ivy resided with their father at Louisville, all the children made their home with their mother in Chicago. The evidence clearly shows that his affection for his children still remained to a considerable degree. In 1881 appellee suffered a sunstroke, and later on was in a building which was blown down by a destructive tornado in Louisville. His health for some years before the giving of the deed here in question had been very poor, evidently bordering on nervous prostration, or like trouble. He was then unable to work without lying down at intervals, and was subject to insomnia and vertigo. He secured a modest living of from $25 to $30 a month by running a small printing shop having equipment worth about $300, with the assistance of one helper. On December 30, 1903, Mrs. Owens, appellee's former wife, and his daughter Amy Owens, met their death in the Iroquois Theater fire, in Chicago. At the time of her decease Amy Owens was the owner in fee simple of a house and lot on Kimbark avenue, in Chicago, valued at about $8,000, subject to a mortgage of $3,000. She was unmarried, left no children or descendants of children, and died intestate. Said premises became, by descent, the property of the children, May, Guy, Roy, and Ivy, and of appellee. Appellee came to Chicago and attended the funeral. On January 8, 1904, appellee's son Roy Owens went to Louisville, taking with him a quitclaim deed of the Kimbark avenue property to Ivy Owens, as grantee, and also a power of attorney to Ivy Owens, authorizing her to convey, release, and quitclaim all appellee's interest in the estate of his daughter Amy. After an affectionate greeting they went together to the office of an attorney, who testified, however that in this matter he considered that they wished him to act simply as a notary public. Appellee, after very hurriedly glancing over the papers, signed and acknowledged them, and afterwards he or the notary delivered them to the son. Roy and May had apparently signed the deed in Chicago before it was presented to the appellee. As to just what appellee understood he was signing away, and what Roy stated to him the papers contained, the testimony is somewhat in conflict. Appellee testified that when his son first met him he stated, ‘Pa, we are going to give you your share of Amy's property,’ and that he replied, ‘All right; I don't care so much for the property as I do for your love;’ that the son said, ‘Now, there will be some probate business, and as Ivy will be in Chicago, and I will be away, and May will be in California, and Guy is in Honolulu, we have concluded to sign a paper having Ivy represent us,’ whereupon appellee said, ‘All right.’ Appellee further testified that he thought he had little or no interest in the Kimbark avenue property, as he understood it belonged to his former wife, and that, being a divorced man, the only necessity of his signing the deed was to clear the record of any former dower estate he may have had; that he did not know his daughter Amy was the owner of the premises, or that he was signing away his rights derived by descent from her, and did not learn of that until some time in December, 1905. The attorney before whom, as a notary public, the quitclaim deed was acknowledged, testified that the two came to his office and Roy took the papers from his pocket; that witness asked appellee if he had read the papers, and he replied, ‘No; I haven't read them; Roy told me what was in them; that is all right; take the acknowledgment according to law,’ and that he then sat down and signed the papers; that after this was done, and his certificate added, witness delivered them to Roy Owens; and that appellee did not read them while in his office. On behalf of the appellant, Roy Owens testified that he told his father he had come down with some papers for him to sign, so it would facilitate settling up Amy's estate; that on the way to the attorney's office he explained to his father that they did not want to beat him out of anything that was rightfully his, and three or four times during that conversation his father said, ‘I don't want a thing; all I want is your love;’ that at about the instant his father commenced to sign the papers the attorney said, ‘Mr. Owens, you know what you are signing? You are signing away your title to your daughter's property;’ that the father said, ‘Yes, I know what I am doing; I want nothing.’ The son testified that an hour or so after the papers were signed he gave his father $25, which witness considered as a consideration, and not as a gift, but he also admitted that nothing at all was said to appellee, before he signed the papers, about paying him for signing them. It seems to be assumed in the briefs that appellee's interest in the premises was worth not far from $2,000. The attorney who took the acknowledgment of the deed was asked as to Roy Owen's version of what took place just at the time of signing, and stated that no mentionwhatever was made of the property belonging to Amy Owens, that...