Shadden v. Zimmerlee

Decision Date24 September 1948
Docket NumberNo. 30643.,30643.
Citation81 N.E.2d 477,401 Ill. 118
PartiesSHADDEN et al. v. ZIMMERLEE et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Winnebago County; William R. dusher, judge.

Suit by Lulu Shadden and another against William F. Zimmerlee and others to set aside an alleged deed, for an accounting, and for partition, wherein the named defendant filed a cross-complaint seeking dismissal of partition suit and seeking declaration that title to the realty was in him. From an adverse decree, the plaintiffs appeal.

Decree affirmed.

Rapheal E. Yalden, of Rockford, for appellants.

Maynard & Maynard, of Rockford (Frank E. Maynard, of Rockford, of counsel), for appellees.

FULTON, Chief Justice.

This is an appeal from the circuit court of Winnebago County from an order of said court finding that an instrument moving from one Myrtle Mae Zimmerlee, now deceased, to William F. Zimmerlee, one of the defendants herein, was a deed, sufficient to convey title in certain property to the said William F. Zimmerlee.

It appears from the record herein that William F. Zimmerlee, hereinafter called defendant, was married to one Myrtle Mae Zimmerlee in 1941. Myrtle Mae Zimmerlee had five children by a previous marriage, two being the plaintiffs herein, Lulu Shadden and Henry Chance, and three, James Chance, Jay Chance and Leona Wilsey, being additional defendants.

On July 9, 1942, the defendant purchased, with his private funds, the land here in question and had the same placed in joint tenancy with his wife. Subsequently the defendant was threatened with a lawsuit, and upon the advice of counsel, he placed the land by deed in his wife's name. He continued in active control of the land and paid taxes upon it up to the date this suit was started.

Shortly prior to April 20, 1944, Myrtle Mae Zimmerlee became ill and executed a document purporting to be a deed dated April 20, 1944. Since this document is of extreme importance in the decision of this cause, it is set out here in full:

Apr. 20-1944

Rockford Ill.

Quick Claime Deed Asinment to B. F. Zimmerlee

My interest it said piece of property consisting of 8 eight lots in Winebago County Ill. as described upon the plat of G. W. Gilbert's Sub. being a part of the South West quarter of Section 16 town 44 N. R. 1 E. of the 3rd p. M. the plat of which Subdivision is recorded in Book 20 of plat on page 45 in the Recorder's ofice of Winnebago County Ill. and the above maned being may (husband said property is his) to hold and sell and use the the prosedes as long as he shall live

this is my last wish

Myrtle Zimmerlee

witness-Mrs. Bessie F. Malone

Notary Public

Lenna Smith

Rockford, Ill. (Seal)'

This instrument was filed for record on July 11, 1944, in the recorder's office in Winnebago County.

Shortly after executing this document, Myrtle Mae Zimmerlee died and thereafter the defendants James Chance, Jay Chance and Leona Wilsey executed quitclaim deeds to the property to their stepfather, W. F. Zimmerlee. On November 8, 1946, the two remaining children, the plaintiffs herein, filed their complaint to set aside the conveyance of Myrtle Mae Zimmerlee and for an accounting and partition, setting up the fact, among other things, that the instrument herein was void.

An answer and cross complaint were filed on behalf of the defendant William Zimmerlee, wherein he asks that the partition suit of the appellants be dismissed and that the title to the property in question be declared to be in him. The sole question under the record and the briefs filed herein is the construction to be given to the instrument set out above.

In assigning errors in the trial court and in asking that the decree of the trial court be reversed, the plaintiffs state that the instrument in question is insufficient because: (1) It contains no words of grant; (2) it was not under seal; (3) it was not acknowledged; and (4) that the defendant comes into equity with unclean hands inasmuch as he conveyed the property to his wife to avoid a judgment which was threatened in another lawsuit.

In support of the contention that the instrument in question does not contain words of grant, the plaintiffs herein cite Johnson v. Bantock, 38 Ill. 111,Cross v. Weare Commission Co., 153 Ill. 499, 38 N.E. 1038,46 Am.St.Rep. 902, and Legout v. Price, 318 Ill. 425, 149 N.E. 427.

Johnson v. Bantock, 38 Ill. 111, involved a sheriff's deed. The instrument therein stated, ‘I have this day sold,’ and that the purchasers ‘are entitled to a deed for the premises so sold, to have and to hold the said described premises, with all the appurtenances thereunto belonging to’ the purchasers, their heirs and assigns forever. This court therein held that the deed contained no words which import a grant, release or transfer of the land. We said, ‘No particular form of words is necessary, but it must appear from the language employed that it was the intention to convey the title and the language must purport to have that effect. We might conjecture that the sheriff intended to convey because it was his duty to do so, and he has recited facts showing that the plaintiffs were entitled to a conveyance, but that is not sufficient; it must appear from the instrument itself, and the language employed, that he intended to, and did convey and transfer the title.’

In Cross v. Weare Commission Co. 153 Ill. 499, 38 N.E. 1038,46 Am.St.Rep. 902, the controversy was between an execution creditor and a mortgage creditor as to whether the judgment of the one or the mortgage of the other was entitled to priority of lien. In that case this court used language similar to that used in Johnson v. Bantock, 38 Ill. 111, saying, ‘It is not essential, that the instrument of conveyance should follow any exact or prescribed form of words, provided the intention to convey is expressed. To make a conveyance valid, it is sufficient, in general, that there be parties able to contract and be contracted with, a proper subject matter sufficiently described, a valid consideration, apt words of conveyance, and an instrument of conveyance duly sealed and delivered.’

Legout v. Price, 318 Ill. 425, 149 N.E. 427, 429, cited the case of Johnson v. Bantock, 38 Ill. 111, and stated, ‘There are many other decisions to the same effect-that it is necessary to the passing of title that the conveyance contain words showing an intent and actually purporting to transfer the grantor's interest.’

In all these cases, certain language was held to be sufficient or insufficient at law, as the case may be, but, it is to be noted, each stresses the intent of the parties as the prime factor to be considered.

In arguing this same proposition, the defendant states that formal words of grant are not necessary and, in support of his statement, cites the cases of Bear v. Millikin Trust Co., 336 Ill. 366, 168 N.E. 349, 73 A.L.R. 173;Barnes v. Banks, 223, Ill. 352, 79 N.E. 117, 8 L.R.A.,N.S., 1037, 114 Am.St.Rep. 331;Patterson v. McCay, 313 Ill. 491, 145 N.E. 87;Williams v. Swango, 365 Ill. 549, 7 N.E.2d 306;Trapp v. Gordon, 366 Ill. 102, 7 N.E.2d 869, and Brunotte v. De Witt, 360 Ill. 518, 196 N.E. 489.

Bear v. Millikin Trust Co., 336 Ill. 366, 168 N.E. 349, 355, 73 A.L.R. 173, involved a suit for partition of certain lands and cancellation of a deed executed by an ancestor in his lifetime. In that case we said, ‘A deed will, if possible, be construed so as to effect the intention of the parties as gathered from a consideration of the whole instrument, and in ascertaining the intention, courts are not confined to a strict and literal construction of the language used, when such construction will frustrate the intention of the parties gathered from a consideration of the whole instrument.’

In Barnes v. Banks, 223 Ill. 352, 79 N.E. 117, 118, 8 L.R.A.,N.S., 1037, 114 Am.St.Rep. 331, the court was confronted with the construction of an instrument which stated, ‘I present you, on this your 33d birthday, with the house and premises now occupied by you,’ and which went on to describe more fully the premises mentioned. As in the instant case, the argument was made that it was essential that every deed of conveyance must contain words which import a grant, release or transfer of the land or the title to the same, as it is only by apt and proper language that title can be passed or transferred. In that case we held that the written instrument was a gift to the appellee from the father and that it was absolute and irrevocable and passed to the appellee the title in fee simple to the premises designated in that instrument.

The theory enunciated by the courts in this class of cases is that the intention of the grantor should be given effect whever possible. For example, in Williams v. Swango, 365 Ill. 549, 7 N.E.2d 306, 309, involving a suit for partition, we said, ‘The paramount rule of construction of deeds is that the intent of the grantor is to be collected from the whole instrument. Such a construction should be given the deed as carries into effect such intention, where it is legal, rather than a construction which would defeat the intent.’ We also said that, ‘it becomes important to look to surrounding circumstances to determine if, in them, there be any evidence to indicate the construction placed by the parties upon the words used in the deed. Equity will seek best to discover and carry into effect the real intention of the parties.’ In Trapp v. Gordon, 366 Ill. 102, 7 N.E.2d 869, 874, similar language was employed. We said, ‘This is a suit in equity, and courts of equity look to the substance rather than to the form of written instruments, and seek to discover and carry into effect the real intention of the parties, gleaned not only from the written instruments they executed, but from their subsequent acts and conduct with reference thereto.’

A study of the cases cited by both the plaintiffs and the defendant indicates that the court in every type of case, either in law or in equity, considers, insofar as...

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