Schueler v. Blomstrand

• Decision Date: 14 November 1946
• Docket Number: No. 29497.,29497.
• Citation: 394 Ill. 600,69 N.E.2d 328
• Parties: SCHUELER et al. v. BLOMSTRAND et al.
• Court: Illinois Supreme Court

394 Ill. 600

69 N.E.2d 328

SCHUELER et al.

v.BLOMSTRAND et al.

No. 29497.

Supreme Court of Illinois.

Sept. 18, 1946.

Rehearing Denied Nov. 14, 1946.

Appeal from Circuit Court, McHenry County; William R. Dusher, judge.

Suit by Walter R. Schueler and another against Harold R. Blomstrand and another to remove cloud from title, wherein the named defendant filed a counterclaim asking that he be adjudged the owner of the property. From a decree dismissing plaintiff's amended complaint, the plaintiff appeal.

Reversed and remanded with directions.Fred B. Bennett, of Woodstock, and Philip H. Treacy, of Chicago (Eugene P. Kealy, of Chicago, of counsel), for appellants.

David R. Joslyn and Charles S. Parker, both of Woodstock (Herbert Krenz, of Cary, of counsel), for appellees.

WILSON, Justice.

A decree of the circuit court of McHenry county dismissed the amended complaint of the plaintiffs, Walter R., Albert and Arthur Schueler, seeking to remove as a cloud upon their title a deed dated November 10, 1936, from their mother, Alvina Schueler, deceased, to the defendants, Harold R. and Mildred Blomstrand, to an improved parcel of real estate in McHenry county and granted the relief sought by defendant and counterclaimant, Harold R. Blomstrand, adjudging him the owner of the property. Plaintiffs prosecute a direct appeal, a freehold being necessarily involved.

In 1915, upon her husband's death, Alvina Schueler became the owner in fee simple of real estate improved with an eight-room two-story dwelling located on the east side of the Fox River, about one mile north of the McHenry bridge. Thereafter, Mrs. Schueler was in possession of the premises and occupied the property as a summer residence about seven months of the year, usually from early spring until November. On February 23, 1933, she conveyed the property to her granddaughter, Beryl Spies and husband, by warranty deed, which was caused to be placed of record in due course. These grantees, in turn, on February 24, 1933, reconveyed the property to Mrs. Schueler. This second deed was not placed of record until November 24, 1936. On the same day, the challenged conveyance, a quitclaim deed to the property from herself to Blomstrand, dated November 10, 1936, was recorded. Mrs. Schueler had become acquinted with Blomstrand in 1928 or 1929 when she was a customer, and he, an employee, of the Logan Square State Savings Bank, in Chicago. In 1932, the bank closed and, subsequently, Blomstrand became a member of a real-estate firm and, later still, in 1934, went into business for himself under the name of H. R. Blomstand & Company. Mrs. Schueler owned mortgage notes and real-estate bonds having an aggregate par value between $18,000 nd $20,000, all the obligations being in default. She turned these securities over to Blomstrand who deposited them with the respective bondholders' committees. He was chairman of many, if not all, of the committees, and his real-estate company the depositary. Remittances representing collections on the defaulted bonds were sent to Mrs. Schueler. During this period, Blomstrand advanced modest sums to her ranging from $25 to $75. He kept no record of the advances, and she repaid him in full. Mrs. Schueler, on November 10, 1936, also owned an improved parcel of real estate in Chicago, located at 5030 Berteau avenue. She paid $9200 for this property in, or prior to, 1921. In 1936, the mortgagee, according to Blomstrand, was pressing for payment of the mortgage indebtedness in the principal amount of $5000. Blomstrand paid her $100 for her equity in the property, and purchased the mortgage not for approximately $4000. Interest for five years, amounting to more than $1000, was in default, and taxes were in arrears. It does not appear, however, that Blomstrand paid the past- due interest, or whether he paid the taxes in full or compromised them. Eliminating details, Blomstrand paid Mrs. Schueler $100 for the property, paid off the mortgage debt at the rate of eighty cents on the dollar, and moved into the property on Berteau avenue, a five-or six-room house, which he, up to the time of the trial in 1945, occupied as his home. Four month later, on March 23, 1937, he wrote to Mrs. Schueler, who was then in Florida, saying, in part: ‘In connection with the property that you own at 5030 Berteau Avenue, I am sorry to advise you that Mr. Charles Porter was in desperate need of moneys and recently disposed of the mortgage by selling it to a person, who at the present time is abount to foreclose on the property. * * * The owner of the mortgage has suggested that he will pay a sum of $50.00 or $75.00 for the deed to the property so that he does not have to foreclose. * * * Kindly advise me whether I should give a deed to the property and at least get something for the title.’

On the same day that Blomstrand paid Mrs. Schueler $100 for her equity in the Berteau avenue property, the deed to the property on Fox River was executed. Apparently, she turned over to Blomstrand the deed from Beryl Spies to herself reconveying the property in controversy. According to Blomstrand, Mrs. Schueler declared that she had placed title in her grand daughter and the latter's husband for convenience to avoid claims or judgments which might be entered against her and, for this reason, had never caused the deed to be recorded, adding: ‘Now that you have the deed, you can copy the legal description of in and then you will have to record both of them because you will have to put the title first to me and then to you.’ In this connection, we observe that the deed from Mrs. Schueler to Blomstrand, dated November 10, 1936, not only contains the legal description, but, also, the following language taken verbatim from the deed of February 24, 1933, from Beryl Spies and her husband to Mrs. Schueler: ‘including also all the contents of said building execepting the bedding and wearing apparel.’

On the same day or the day after the deeds to Mrs. Schueler's two parcels of real estate were executed, she also executed a will, dated November 11, 1936, prepared by Blomstand. We must note that he is not a lawyer. By this will, she divided her property equally among her four sons, and appointed Blomstrand executor of her will and trustee of her estate, giving him full power and authority ‘to liquidate any and all assets of my estate after my death and authorize and empower him to distribute equally to my four sons, * * * any and all assets after they have been liquidated by Harold R. Blomstrand.’

From the time the deed was executed in November, 1936, to the fall of 1942, Mrs. Schueler occupied the property, as she had in the past, as a summer some for approximately seven months of each year, paid all the taxes, real and personal, maintained the property in a substantial state of repair, in curring expenses of $350 for a concrete seawall, and an additional $150 for landscaping and, in general, exercised complete dominion over the property. No one of her four sons was informed of the conveyance, either by her or by Blomstrand, who saw each of them from time to time.

In October, 1942, Mrs. Schueler purchased from Roy A. Kent a three-year fire-insurance policy covering the property in McHenry. A title search, dated November 18, 1942, obtained at Kent's suggestion, disclosed title in Blomstrand. On December 11, 1942, Mrs. Scheler executed a quitclaim deed conveying the property on Fox River to her sons, Walter R., Albert and Arthur. This litigation followed.

August 20, 1943, Alvina Schueler filed her complaint in the circuit court of McHenry county against the defendants, Harold R. Blomstand and his wife, charging that she never knowingly executed the deed of November 10, 1936, to Blomstrand; that it was without consideration, and obtained either by fraud or by reason of undue influence exercised by him, a trusted and confidential adviser, who had long occupied a fiduciary relationship to her. Additional allegations are that Blomstrand, hereafter referred to as defendant, obtained possession of the warranty deed from Beryl Spies to Mrs. Schueler by inadvertance and mistake; that, in particular, this deed was folded in with another deed from Beryl Spies conveying the Berteau avenue property in Chicago, and that, when the deed to the property on Berteau avenue was delivered to defendant, the deed to the property on Fox River, folded up, as described, unknown to Mrs. Schueler, and unintentionally, came into defendant's possession. Accordingly, Alvina Schueler asked that the deed from her to defendant conveying the Fox River property be adjudged void as against her and set aside as a cloud upon her title.

Mrs. Schueler died on January 4, 1944, in the eighty-fifth year of her age. She left surviving as her only heirs-at-law her four sons, Walter R., Albert, Arthur and Theodore. By her last will and testament, executed December 7, 1942, she excluded Theodore from participating in her estate for reasons set forth, and bequeathed and devised all of her property to her other three sons, Walter, Albert nd Arthur.

After Mrs. Schueler's death, her sons, Walter R. and Albert, as executors of her will, and Walter, Albert and Arthur, individually, were substituted as parties plaintiff and granted leave to file their amended complaint. This pleading contains the essential allegations of the original complaint. Plaintiffs claim title under the deed of December 11, 1942, rather than as devisees under her will. They charge that at no time since November 10, 1936, did defendant assert any rights, or evidence any ownership of the property. Concluding allegations are that defendant continued as confidential adviser to Mrs. Schueler in all matters pertaining to her real-estate transactions during the period from prior to November 10, 1936, to December, 1942. Defendant Blomstrand and his wife answered the amended complaint, denying its allegations to the extent that they charge the deed was obtained by fraud,...