Schroeder v. Smith

• Decision Date: 19 April 1911
• Citation: 94 N.E. 969,249 Ill. 574
• Parties: SCHROEDER v. SMITH et al.
• Court: Illinois Supreme Court

249 Ill. 574

94 N.E. 969

SCHROEDER

v.SMITH et al.

Supreme Court of Illinois.

April 19, 1911.

Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Bill by Henry Schroeder against Sophie Smith and others.Decree for plaintiff, and defendants appeal.Affirmed.

Stephen C. Knight(Clyde C. Colwell, of counsel), for appellants.

P. R. Barnes(W. P. Quinby, of counsel), for appellee.

COOKE, J.

Appellee, Henry Schroeder, filed his bill in the circuit court of Cook countyNovember 20, 1909, to reform a deed executed by his wife, Sophie, on July 24, 1884, conveying to him 88 acres of land in Cook county.Appellants are the children of Sophie Schroeder by a former husband.Sophie Schroeder died shortly after the execution of the deed, and within a year after her death appellee discovered that by a mistake in the deed 8 acres of the land intended to be conveyed were not described as being in the proper section and township.Upon the execution and delivery of the deed, appellee went into possession of all the land intended to be conveyed, and has ever since been in the peaceable possession of the same.The cause was referred to the master in chancery, to take the evidence and report the same, together with his conclusions of law and fact.The master reported, finding that appellee was entitled to the relief sought.The court overruled exceptions to the master's report and entered a decree reforming the deed.

That there was a mutual mistake made in the description of the property in the deed is not questioned by appellants.They seek a reversal of the decree upon the grounds, first, that the conveyance was voluntary; second, that there is no proof of the execution or delivery of the deed; third, that the appellee's right to relief is barred by laches; and, fourth, that the court erred in decreeing that they should pay one-half the costs.

[1] At the time the deed was executed the family of appellee consisted of himself, his wife, and the five minor children of Mrs. Schroeder.The proof shows that at the time the deed was executed Mrs. Schroeder was seriously ill.She executed this deed to her husband upon the consideration that he would furnish her five minor children with a home, board, clothing, schooling, and care during sickness and health, until they should each arrive at the age of 14 years, and that he would pay her four daughters each the sum of $400 and her son the sum of $1,000 when they, respectively, became of age.At that time the children ranged in age from 5 to 13 years.On the same day, July 24, 1884, appellee executed and delivered four promissory notes, for $400 each, payable, respectively, to the four daughters of Mrs. Schroeder, and one for $1,000 payable to the son, and also executed a trust deed to the 88 acres that day conveyed to him, to secure the payment of said notes and to secure his performance of the agreement to provide for the children until they had each arrived at the age of 14 years.Mrs. Schroeder died August 27, 1884.Appellee performed his agreement to care for and educate the children and paid each of said promissory notes as it fell due.This constituted a sufficient consideration to entitle him to maintain his bill.

[2][3]Appellee was in possession of the deed executed by Mrs. Schroeder.He produced it at the hearing and offered it in evidence.The deed bore a certificate of acknowledgment by a notary public,...