Shipley v. Shipley

• Decision Date: 24 October 1916
• Docket Number: No. 10656.,10656.
• Citation: 113 N.E. 906,274 Ill. 506
• Parties: SHIPLEY v. SHIPLEY et al.
• Court: Illinois Supreme Court

274 Ill. 506

113 N.E. 906

SHIPLEY

v.SHIPLEY et al.

No. 10656.

Supreme Court of Illinois.

Oct. 24, 1916.

Appeal from circuit court, Edgar County; Walter Brewer, Judge.

Bill by Amos Shipley against John M. Shipley and others. From a decree for complainant which dismissed defendants' cross-bill, they appeal. Reversed and remanded, with directions.W. H. Clinton and Shepherd, trogdon & Dole, all of Paris, for appellants.

O'Hair & Rhoads, of Paris, for appellee.

CARTER, J.

In July, 1915, Amos Shipley, the appellee herein, filed a bill in the circuit court of Edgar county, asking to have the title to an 80-acre farm in that county quieted and declared in his name in fee simple. Appellee's eight children-five sons and three daughters-were named as defendants. The three daughters answered, and also filed a cross-bill, both pleadings denying that their father had a fee-simple title in the land. Four of the sons joined with their father in an answer to the cross-bill, representing that the land belonged to the father, as he alleged. The other son answered the original bill, denying that the father should have the title quieted in him, but did not join in the cross-bill with his sisters. A decree was entered in accordance with the prayer of the original bill as amended, finding the fee-simple title in appellee, free and unincumbered in any manner, and dismissing the cross-bill for want of equity. From that decree this appeal was prayed by the oldest son and the three daughters.

In February, 1889, this 80-acre farm was conveyed by warranty deed to Sarah J. Shipley, wife of appellee, by John and Johanna Fitzpatrick. Of the $2,700 purchase price $300 was paid by Mrs. Shipley with money she had received from her father. The title was taken subject to two mortgages. Before this bill was filed these mortgages, after being renewed, were paid off. The evidence is somewhat conflicting as to the sources from which the money for that purpose was obtained, but it is apparent that a large proportion of it came from the proceeds of the farm crops. While the land stood in the name of the wife until her death, in the early part of 1915, it seems that the husband paid most, if not all, of the taxes, and had charge of the farm, though there is testimony tending to show that the sons, during the later years at least, did much of the farm work. At the time of this litigation the children were all of age and married. Their names were: John M., Clark L., Amos F., Nathan O., and Courtley C. Shipley, and Cora D. Guymon, Lucy C. Adams, and Otha B. Qualkenbush.

Counsel for appellee contend that the land was placed in the name of the wife at the time it was purchased, so that she would be accepted as security, along with her husband, for any money he might wish to borrow in carrying on his farming operations, and that at the time the deed was made to her she executed and delivered to him a warranty deed for the land; that the deed contained a provision that possession should not be taken thereunder until the death of the wife; that is, that the deed executed by her to him conveyed the title to him subject to a life estate in her. The testimony in the record shows that at or about the time the deed conveying this property to the wife was executed, in 1889, a deed, or an unsigned draft of a deed, was prepared, conveying the property from the wife to the husband, subject to a life estate in her. The testimony also shows that in 1903 or 1904 that instrument was destroyed. There is, however, the most serious conflict in the evidence as to whether this deed from the wife to the husband was ever signed by her, and, if signed, whether it was ever delivered by her to him. The wife was seriously ill in 1903, and for some time was not expected to live. The testimony of two daughters and the oldest son, John, is to the effect that the mother asked to have John take this deed and keep it, and if she got well he was to give it back to her, and she would destroy it, and if she died he was to destroy it. Two daughters testified that one of them got this deed at this time from their mother's trunk. John did not know from where it was obtained when his mother gave it to him. One of the daughters testified that she read the deed at that time, and that it was not signed by any one. The second daughter testified that she heard her sister read it aloud to the mother, and that no names were read as signed to it, and that she understood at that time it was not signed by any one. John testified that he did not remember whether it was signed or not. The second son, Dr. Shipley, a practicing physician, testified that a year or two before his mother was sick he had heard a dispute between her and one of his sisters about this deed, and looked it up then and found it in his father's trunk, along with the deed conveying the land to his mother; that he compared the two deeds, and the description of the property was the same in both, and that the deed to his father was executed by both his father and mother, the acknowledgment being taken by the same justice of the peace who took the acknowledgment in the deed to his mother; that he was present at the time his oldest brother, John, took the deed, when John and the two sisters claim that the deed was given to John by the mother. The doctor at that time was working on the farm, and we should judge from his age and the other testimony that he had not then been licensed to practice. He testified that his mother did not give the deed to John; that the girls found it and gave it to John, and that John told him that he was going to take it home and keep it; that this occurrence took place 5 o'clock in the afternoon. The sisters testified that the incident concerning the deed took place in the morning, and that the doctor was not present and knew nothing about the mother's talk with the three children who were there, except as it as told to him afterwards. There is also testimony of one or two other witnesses that tends to support the testimony of the two sisters that the doctor was not present at his parents' home on the morning of the day in question. John was not asked directly as to whether the doctor was present at the interview with the mother. He did testify, however, that his two sisters were with him at the time his mother gave him the deed. The mother recovered partially from her serious illness, but was in poor health, apparently, from that time until her death, though up and around most of the time. It is conceded by all parties that the deed was destroyed not long after this serious illness. The weight of the evidence is to the effect that it was destroyed by the mother or under her direction. The two youngest sons testified that after the deed was destroyed they heard their mother promise their father, appellee herein, that she would execute and deliver to him another deed of the same kind as the one destroyed. One of the sons also testified that the mother said that this deed to the father had been delivered to him. The three daughters each testified that they heard their mother say that she had never delivered the deed to the father, and never intended to do so. A letter was introduced in evidence, dated January 5, 1904, which it was testified was written by the mother and sent to one of her daughters in Indiana, which reads, in part, as follows:

‘Well Otho I am Going to Tell you A Bout That Deed I Burned it At John Paw had it Mad an Tried to Make sign it He Jaws Me About giving It To Him I Burned it So he could not make me Sign It or cause Me Any Trouble with it I Have Paid All that Has Been Paid on The Place If I Dye Before he does I Want you Children To Have The Place.’

Some of the daughters testified that the father hunted among his private papers, after the death of his wife, to find this deed; that when he found it was destroyed he said, in effect, that any one who had any sense would know that it was not necessary to destroy the deed; that it was valueless. One of the daughters and her husband testified that shortly before they were married they heard the father trying to get the mother to execute a deed to him, and she refused, saying that she had done as much to pay for the farm as he had. There is testimony of another son-in-law that appellee had told him, some years before the mother's death, that Mrs. Shipley owned the farm. There is also testimony in the record of Dr. Brackney, a brother of Mrs. Shipley, who was called from his home in Indiana to assist in treating her in her serious illness in 1903, that she talked with him then about this deed, and told him that she never intended to deliver it. The evidence tends to show that the mother did not want to convey the property to the husband, because she wanted to leave it to the children, and some of the children-especially the daughters-feared that if the mother died the father would marry again, and if he owned the property he would disinherit them. Dr. Shipley testified that he owed his father about $1,200, and also that some of the other sons were more or less in debt to the father. There is no evidence in the record that any of the daughters had ever borrowed money from either of their...