Nofftz v. Nofftz

• Decision Date: 03 December 1919
• Docket Number: No. 12407.,12407.
• Citation: 290 Ill. 36,124 N.E. 838
• Parties: NOFFTZ v. NOFFTZ.
• Court: Illinois Supreme Court

290 Ill. 36

124 N.E. 838

NOFFTZ

v.NOFFTZ.

No. 12407.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 3, 1919.

Appeal from Circuit Court, Champaign County; Franklin H. Boggs, Judge.

Suit by Emma Nofftz against Albert Nofftz. From decree for complainant, defendant appeals. Reversed and remanded.H. T. Schumacher, of Champaign, and Herrick & Herrick, of Clinton, for appellant.

Dobbins & Dobbins, of Champaign, for appellee.

THOMPSON, J.

Emma Nofftz filed her bill in the circuit court of Champaign county March 28, 1917, for the purpose of establishing a deed alleged to have been made by Albert Nofftz and Caroline Nofftz, his wife, and in her bill alleged that by the deed sought to be established there was conveyed to her in fee simple, subject to a life estate, the southwest quarter of section 19, in township 18 north, range 8 east, of the third principal meridian, in the county of Champaign, Ill. The cause took the usual reference to the master, upon whose findings the chancellor entered his decree, directing that the premises be conveyed to Emma Nofftz, subject to the life estate in said premises of Albert Nofftz and Caroline Nofftz and the survivor of them. Albert Nofftz has appealed from this decree.

Prior to March 1, 1911, Albert Nofftz was the owner of a section of land in Champaign county, which included this quarter section. It is the contention of appellee that appellant and his wife on March 1, 1911, executed and delivered to her a deed to this 160 acres of land. Appellant admits the execution of a deed, but insists that the deed was not delivered; that he destroyed it in August, 1912. The evidence taken before the master consisted chiefly of the testimony of the members of the Nofftz family. The appellantand his wife, after living together nearly 50 years, separated in 1916. There were eight children, and at the time of this litigation all except Frank, the youngest child, seemed to be estranged from their father. Appellee is the oldest child and has lived the greatest portion of her life with her parents. There is much conflict in the testimony of these witnesses. They not only contradict each other, but they contradict themselves. It is very difficult, therefore, to arrive at the truth from the inconsistent testimony of the several witnesses.

The appellee testified that on March 1, 1911, she went to the office of Walter E. Price, a notary public and abstracter in Champaign, in company with her father and brother Frank; that two of Price's sons were present; that on that occasion her father gave Frank a deed for 40 acres of land which Frank had purchased from him; that at the same time he handed her a deed for the 160 acres of land here in dispute, and after handing her the deed said, ‘This is yours.’ She further testified that she did not read the deed over at that time, nor make any inquiry as to what it contained, but without comment she placed it in her handbag, and after doing some errands downtown went to her father's house in Champaign and there she first read the deed; that her father (appellant) was present and she read the deed aloud to him; that after she read it to him appellant took the deed and said he would keep it for her; that she had the deed in her possession about two hours; that the deed provided that she was to own the 160 acres absolutely and do what she pleased with it after her father and mother died. She is not able to state the contents of the deed, but insists that it conveyed to her the remainder in fee after the termination of a life estate in her father and mother or the survivor of them. The only competent evidence supporting appellee is the testimony of two brothers and two sisters, who testified that on different occasions they each had a conversation with appellant, and that in those conversations he stated that he had deeded the 160 acres to appellee, to do with as she pleased after his death.

Appellant testified in his own behalf and denied absolutely the delivery of the deed and denied having the conversations testified to by his children in which they said he admitted the delivery of the deed. He further testified that, after appellee came to Champaign to live with him and his wife, he told her that if she would stay with them and take care of them and treat them right she should have this quarter section after the death of himself and his wife, and that if she died with children surviving her the land should go to her children after her death, but that if she died without children surviving her the land should go to Frank and his heirs. Appellant further testified that the deed had been made long before he spoke to appellee about the matter, and that Walter Price had written the deed in accordance with the terms which appellant discussed with appellee; that the deed was never in the possession of appellee and that he never showed her the deed; that shortly after the deed was made he put it in a safe deposit box, and that it stayed there until appellee adopted a course of ill treatment toward him and directed him to get out of his own home and go to the Old Soldiers' Home to live; that after this course of conduct became unbearable he burned the deed and told her that he had burned it; that the quarrels continued in the home until in September, 1916, when articles of separation were signed between him and his wife, at which time he deeded her 200 of the 600 acres he then owned, together with a home in the city of Champaign. He further testified that no demand had ever been made upon him for this deed and that nothing had been said about it from the time he hold appellee that he had destroyed it until six months after the articles of separation had been made between him and his wife; that about March 1, 1917, he prepared a deed to convey this 160 acres to his son Frank and asked his wife to sign the deed; that appellee told her mother not to sign the deed; and that immediately after that appellee and her mother began to make complaint about the delivery of this destroyed deed. Appellant is corroborated in his view of the transaction by his son Frank and by the notary, Walter Price.

Frank testified that appellant did not on March 1, 1911, or on ary other day, in his presence deliver a deed to appellee and say to her, ‘Here, this is yours.’ He further testified that the appellee was not at the office of Walter Price at the time his father delivered to him the deed for the 40 acres. Frank contradicts the appellee in practically everything she says, and there is no way of reconciling their testimony.

Walter Price testified that he has lived in Champaign since 1857 and for the past 20 years has been head of the Twin-City Abstract Company; that in March, 1911, he prepared two deeds for Albert Nofftz, one conveying land to Frank Nofftz and the other conveying land to Emma Nofftz; that Albert Nofftz gave him the descriptions of the land which he wanted in the deeds, and that after the deeds were prepared he took them to the residence of Mrs. Nofftz for her to sign; that after taking her acknowledgment to the signature he took the deeds back to his office and completed the acknowledgment and handed the deeds to Nofftz; that Emma Nofftz, the appellee, was not present on that occasion, and that Albert Nofftz did not in the abstract office deliver the deed over to Emma Nofftz on the 1st day of March, or at any other time, and say, ‘Here, this is yours'; that she was never in his office at any time when any deed was delivered by Albert Nofftz to Frank Nofftz. He also contradicted Emma Nofftz in many other details not connected with the delivery of the deed.

The undisputed evidence shows that since March, 1911, the appellant has been in possession of the premises, has paid the taxes, and has expended about $2,500 in repairing buildings upon the premises, erecting new buildings thereon,tiling the land, and paying drainage assessments against the land.

The evidence is very unsatisfactory with respect to the contents of this deed. No witness is able to testify just what the deed contained. Appellee contends that the deed conveyed to her this quarter section in fee simple, subject...