Oliphant v. Liversidge

• Decision Date: 24 March 1892
• Citation: 142 Ill. 160,30 N.E. 334
• Parties: OLIPHANT et al. v. LIVERSIDGE.
• Court: Illinois Supreme Court

142 Ill. 160

30 N.E. 334

OLIPHANT et al.

v.LIVERSIDGE.¹

Supreme Court of Illinois.

March 24, 1892.

On rehearing.

MAGRUDER, C. J.

This is a bill filed on November 3, 1888, in the circuit court of Cook county, by the appellee against the appellants, Louisa Oliphant and John Oliphant, her husband, Emma H. West and William West, her husband, and Joseph Henry Liversidge, to set aside a deed of certain real estate in Chicago, executed by appellee to Mrs. Oliphant, Mrs. West, and Joseph H. Liversidge, a bachelor, who are his only children. After hearing had upon pleadings and proofs, the circuit court granted the prayer of the bill, and ordered the deed to be set aside, and declared it to be null and void.

As the deed is short, and as its length is a material circumstance, it will be set forth in full. It is as follows: ‘This indenture witnesseth that the grantor, Amos Liversidge, (a widower,) of the city of Chicago, in the county of Cook and state of Illinois, for and in consideration of the sum of five dollars in hand paid, and of natural love and action, conveys and warrants to Louisa Oliphant, Emma Hannah West, and Joseph Henry Liversidge, (his only children and heirs at law,) of the city of Chicago, county of Cook and state of Illinois, the following described real estate, to-wit: Lot thirteen (13) of subdivision of the esat half of block ten (10) of Brand's addition to Chicago, in the east half the north-east quarter (1/4) of section twenty, (20,) township thirty-nine (39) north, range fourteen (14) east of the third (3d) principal meridian; said premises being also known as numbers ‘517 1/2 and 519 also known as numbers ‘517 1/2 and 519 of Chicago, in the county of Cook, in the state of Illinois; hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state. This deed, however, is subject to an estate for life to remain in said grantor Amos Liversidge, and in case of the marriage hereafter of said grantor, and at his death he should leave a widow him surviving, said grantees shall pay to said widow the sum of one thousand dollars. Dated this thirteenth day of February, A. D. 1888. [Signed] AMOS LIVERSIDGE.’ Appellee lost his wife, the mother of the grantees above named, in 1881, and lived upon the premises above described with his daughter Mrs. Oliphant, and her husband and children. At the time of the hearing he was 66 years old. He received about $47 or $48 per month from the rent of said premises, and lived upon this income, not being engaged in business. The property was worth in 1888 about $10,000, and was all the property which he owned, except some personalty, worth a few hundred dollars. In May, 1887, he went to Europe, and returned in August. Coming over in the vessel, he met a widow named Eliza Maybon, living in New York city, whom he agreed to marry.

The bill alleges that complainant intended to go to England in the spring of 1888, and upon his return in the summer to marry Mrs. Maybon; that the defendants formed a conspiracy to rob him of his property, and by fraud to make him convey it to his three children against his consent; that, by reason of violent demands and threats made by John Oliphant, the complainant consented to make his will, and told Oliphant and his wife to tell Mrs. West to come to said premises on Monday evening, February 13, 1888, and they would talk the matter over; that the defendants, except Mrs. West, met him there at that time; that the provisions of the will were discussed; that complainant asked Mrs. West if she would be satisfied with the same portion as Mrs. Oliphant and Joseph would have; that Mrs. Oliphant said, ‘I have the will all made out for signing;’ that complainant looked at the paper, and asked how the description of the property had been obtained, and was told by Oliphant that he obtained it from the records; that complainant said he thought one or two witnesses were necessary, and Oliphant said it was not necessary to have witnesses; that complainant signed the paper believing it to be a will; that complainant wanted to take the will to some one to be examined, but Oliphant refused to give it up, and kept it without complainant's consent; that, on February 14th, Oliphant told complainant to come with him to a notary to have him put his stamp on it; that, 17 years before, complainant made a will which was stamped, but never executed a deed, and was totally ignorant of making a deed or its requirements; that complainant went to a notary, and acknowledged his signature before him; that Oliphant took the deed, and kept it without complainant's consent, saying he could take care of it, when complainant asked for it upon coming out of the notary's office, to have it examined by a real-estate agent named Hyde; that he told Hyde his folks had compelled him to make a will, and Hyde said the will was worthless without witnesses; that complainant had confidence in Hyde's advice, and intended to make a proper will after his intended marriage; that he never delivered the deed; that he went to Europe in the spring of 1888, and on his return married Mrs. Maybon, in New York, on August 13, 1888, and lives with her on the premises in question; that on or about September 14, 1888, he applied to an attorney, recommended by Hyde, to draw his will; that he told the attorney he had made a will, and produced to him a certified copy of it that had been sent to Mrs. Maybon in New York before the marriage, when he was informed that the instrument was a deed, and not a will; that this was the first knowledge complainant had that he had signed a deed, and that he was ‘amazed and dumbfounded with the knowledge of the fraud,’ etc.

The joint and several answer of the defendants denies all fraud and trickery, and states that complainant had lived for many years, when not traveling, with his daughter and her husband upon the premises in controversy; that he told them of his proposed marriage, and said he wished to settle his real estate satisfactorily to his children, as his intended wife had property of her own; that he first proposed to make a will, but was informed that a deed was necessary to make a final settlement; that he said he would deed the land to his children, he to have it which he lived, and they to pay his widow $1,000 when he died; that the children met at his daughter's house at his request, and read him a deed which they had caused to be prepared, and he read it over carefully, and signed it, and said in the morning that he would go before a notary and acknowledge it; that he is a man of considerable intelligence, and large general information; that he reads and writes readily, and has ‘traveled considerable,’ and has visitedEurope not less than five different times; that he well knew the difference between a will and a deed; that he gave the deed in consideration of his natural love and affection, in accordance with his previously expressed intentions; that the property was accumulated by the joint labors of complainant and the mother of defendants, who at her death left considerable money of her own, which the complainant took without opposition from his children; that they have always tried to make his life pleasant and happy; that, in order to prevent any charge of fraud, they caused a copy of said deed to be delivered to Mrs. Maybon in New York some time before her marriage with complainant; that complainant executed, acknowledged, and delivered the deed freely and fairly, knowing it to be a deed of these premises. The answer denies that, on...