Oliver v. Ross

• Decision Date: 04 December 1919
• Docket Number: No. 12411.,12411.
• Citation: 124 N.E. 800,289 Ill. 624
• Parties: OLIVER v. ROSS et al.
• Court: Illinois Supreme Court

289 Ill. 624

124 N.E. 800

OLIVER

v.ROSS et al.

No. 12411.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 4, 1919.

Appeal from Circuit Court, Livingston County; T. M. Harris, Judge.

Suit by Revilo Oliver against Florence Ross and another. Decree for defendants. Flora Oliver, who was brought in as complainant, appeals. Reversed and remanded, with directions.

Thomas E. Lyon and W. W. Shelley, both of Springfield (Edward D. Shurtleff, of Chicago, of counsel), for appellant.

Adsit & Thompson, of Pontiac, for appellees Mary E. Oliver and others.

W. R. Hunter, of Kankakee (Frank Ortman, of Pontiac, of counsel), for appellee Florence Ross.

THOMPSON, J.

This is an appeal from a decree of the circuit court of Livingston county establishing the ownership of section 33, township 26 north, range 8 east of the third principal meridian, situated in the town of Chatsworth, and lot 1 in the northwest quarter of section 5, lot 1 in the northeast quarter of section 6, lot 5 in the northwest quarter of section 5, the east half of lot 5 in the northeast quarter of section 6, and lot 5 in the northeast quarter of section 5, all in township 25 north, range 8 east of the third principal meridian, and situated in the town of Germanville, all in the county of Livingston and state of Illinois.

Amaretta Oliver became the owner of section 33 about 1880 by virtue of a deed from Franklin Oliver, her divorced husband. Franklin Oliver was married to Amaretta Oliver in 1850. They had three children: Revilo, born in 1853, John, born in 1858, and Florence, born in 1873. They settled in Livingston county at an early date, and securedclaims and acquired rights to nearly 4,000 acres of land. In 1879 they were divorced. Franklin Oliver, it appears, was a poor business man, and when he died, in 1881, he was without property. From time to time Amaretta Oliver acquired title to the lands here in controversy and other lands. This litigation grows out of a series of deeds, wills, trust agreements, and lien notes secured from time to time from Amaretta Oliver by her son Revilo Oliver, and by her daughter, Florence Oliver Ross.

The pleadings and the evidence are very voluminous. On account of the involved condition of the pleadings we set them out more fully than is usually necessary in order to determine what is at issue. Because of the insufficiency of the abstract and the disposition of the parties to disagree on all the facts, we have been compelled to search through the record of approximately 3,000 pages in an attempt to fairly determine the issues here presented.

Revilo Oliver lived with his mother from the date of his birth until her death, August 11, 1908, and was in active management of her affairs. John Oliver left home as a young man, and maintained his home elsewhere until his mother's death. Florence Oliver married Thomas Ross in 1890, and has not lived at her mother's home since that time. The evidence in the record shows that the relations between Amaretta Oliver and Revilo Oliver were unusually close, even for mother and son. He managed all her affairs. It appears that the real estate which she owned at the time of the death of her husband was mortgaged for about one-fourth of its value. This mortgage was paid off by returns from the lands under the management and operation of Revilo. More land was accumulated under Revilo's management, the title being taken sometimes in the name of Amaretta and sometimes in the name of Revilo. The banking business, the leasing of the lands, and all the other transactions were done first in the name of one and then in the name of the other. It is undisputed that the mother often said that if it had not been for Revilo she would not be the owner of any property. Many witnesses testified to this fact, in addition to many other facts which showed the very high regard in which Revilo was held by his mother and the great affection she had for him. It is also apparent from the record that Revilo was able to make much money, but unable to keep it. The record shows nothing unusual with respect to the relations between John and his mother. There appears to have been some trouble between Florence and her mother. Shortly after the birth of Gertrude, the first child of Florence, Gertrude came to live with her grandmother and her Uncle Revilo. It appears that she was nurtured and raised in this home until she was 12 years of age, during which time a governess was provided for her, and she was also sent to school. There apears to have been some trouble between Florence and her mother about this time, and Gertrude was taken from her grandmother's home, and was not permitted to return after that. This statement is necessary to throw light on the future conduct of these parties and the circumstances under which the deeds and wills were executed.

The first instrument involved here is styled in the record a trust agreement. It reads:

‘This is to certify that I hold in trust for Revilo Oliver a one-half interest in the following described property, to wit: Lot one (1) in the northwest quarter (1/4) section five (5) and lot one (1) in the northeast quarter (1/4) section six (6), containing 160 acres, known as the Stuckey farm; also lot five (5) in the northwest quarter (1/4) section five (5), and the east half (1/2) of lot five (5) in the northeast quarter (1/4) section six (6), containing 185 acres, known as the Stinley farm, all in town twenty-five (25) north, range eight (8) east of the third principal meridian, situated in the county of Livingston and state of Illinois, said interest to be conveyed to the said Revilo Oliver as soon as the mortgages now on the said property are paid and satisfied in full, or as soon thereafter as the said Revilo Oliver may desire.

‘Given under my hand and seal this 29th day of August, A. D. 1899.

‘Amaretta Oliver.’

This instrument was recorded April 6, 1911. In 1881 Revilo Oliver secured title to said section 33 through sheriff's deeds. Later, the mother quitclaimed to Revilo all her interest in section 33, so that he had full and complete title to the section. This title remained in him until 1887, when the land was conveyed to his mother through her brother, Niles Smith. The title remained in Amaretta Oliver until 1907, with the exception of two days in 1897, during which time Revilo held title to the land. This was about the time Revilo married Maud Barlow, a woman of questionable character. Legal title was conveyed to Revilo by his mother, at the suggestion of the Barlow woman, without Revilo's knowledge. Two days later it was reconveyed by Revilo to his mother for an expressed consideration of $48,000. Seven years later the following instrument was prepared:

‘$64,000.

Chatsworth, Illinois,

October 22nd, 1904.

‘On or before five years after date I promise to pay to the order of Revilo Oliver sixty-four thousand dollars, with interest at five per cent. per annum. This note is given for the entire purchase money and interest from date of sale for section thirty-three, town twenty-six north, range eight east of the third principal meridian, situated in Livingston county, Illinois, value received, said land to remain in the possession of said Revilo Oliver until note is paid.

‘Due Oct. 22nd, 1909.

‘Amaretta Oliver.’

On the back of the above note appears the following:

‘I hereby accept this note for the entire purchase money and interest from date of sale, for section thirty-three (33), town twenty-six (26) north, range eight (8) east of the third principal meridian, situated in the county of Livingston, in the estate of Illinois. I also agree that this note shall not become a lien on any property my mother, Amaretta Oliver, now owns, except said section thirty-three as above described.

‘Revilo Oliver.’

This instrument was recorded in Livingston county March 28, 1911. September 8, 1904, Amaretta Oliver executed a will, by which she gave to Revilo Oliver all of section 33; to John Oliver lot 5 in the northeast quarter of section 5 and lot 5 in the northwest quarter of section 5, and the east half of lot 5 in the northeast quarter of section[289 Ill. 629]6, township 25 north, range 8 east of the third principal meridian, containing 120 acres more or less; and to Florence Ross lot 1 in the northeast quarter of section 6 and lot 1 in the northwest quarter of section 5, township 25 north, range 8 east of the third principal meridian, containing 160 acres more or less; all the above lands being situated in Livingston county, with the provision that all of the property was to remain in the custody and control of Revilo, with full power to collect all rents until he should have paid off all the mortgages and indebtedness. This will was signed in the presence of her sons, Revilo and John. July 6, 1908, a holographic codicil was added, which reads:

‘To my administrators, Warren and Nathan Goodell: If I should die before the mortgage is paid, help Revilo get my property back and divide as stated in this my last will.

‘Amaretta Oliver.’

There is also in the record the following instrument:

‘State of Texas, Wichita County-ss.:

‘This indenture witnesseth, that the grantor, Amaretta Oliver (a widow), of the village of Iowa Park, in the county of Wichita and state of Texas, for the consideration of love and affection and one dollar and other good and valuable consideration, the receipt of which is hereby acknowledged, convey and quitclaim to Flora Oliver, of the town, county and state aforesaid, the following described real estate, to wit:

‘All of section thirty-three (33), in township twenty-six (26) north, range eight (8) east of the third principal meridian; also lot one (1) in the northwest quarter (1/4) of section five (5), and lot one (1) in the northeast quarter (1/4) of section six (6), and lot five (5) in the northwest quarter (1/4) of section five (5), and the east half (1/2) of lot five (5) in the northeast quarter (1/4) of section six (6), in township...