Springfield Homestead Ass'n v. Roll

• Decision Date: 30 March 1891
• Citation: 27 N.E. 184,137 Ill. 205
• Parties: SPRINGFIELD HOMESTEAD ASS'N v. ROLL.
• Court: Illinois Supreme Court

137 Ill. 205

27 N.E. 184

SPRINGFIELD HOMESTEAD ASS'N

v.ROLL.¹

Supreme Court of Illinois.

March 30, 1891.

Appeal from curcuit court, Sangamon county.

Patton & Hamilton, for appellant.

Palmer & Shutt, for appellee.

BAILEY, J.

The original bill in this case was brought by John E. Roll against Frank P. Roll to establish the complainant's title to certain real estate, and to remove certain clouds from said title. The bill avers that on the 5th day of April, 1875, Robert L. McGuire, as trustee, sold a part of said real estate, under and by virtue of a deed of trust, to Frank P. Roll, who was the complainant's son, the complainant furnishing the money with which the purchase was made; and that Frank P. Roll took a deed of the premises so sold to him in his own name, agreeing to convey the same to the complainant whenever he should so desire. That on the 29th day of January, 1879, the complainant was the equitable owner and in possession of the residue of said real estate described in the bill, the legal title thereto being in Harriet V. Roll, the complainant's wife. That on the day last named the complainant and his said wife executed a conveyance of the real estate last mentioned to said Frank P. Roll, whereby the legal title thereto became vested in him, although the complainant was in equity the owner thereof. That about August 1, 1880, the said Frank P. Roll, then contemplating marriage, which might complicate the complainant's rights in said property, at the request of the complainant made, executed, and acknowledged and delivered to the complainant a warranty deed of all of said real estate. That said deed, after its execution, was lost by or stolen from the complainant without having been recorded. That for a long time prior to the conveyance of said property to Frank P. Roll, the complainant was and had been, and, with the exception of one lot since conveyed to William E. Shutt, still is, in possession and occupancy of all of said real estate. That by reason of the loss of said deed and the complainant's failure to record it, the title to said real estate appears of record to be still in Frank P. Roll; and that the deeds by which said property was conveyed to him constitute a cloud upon the complainant's title. That since the loss of said deed the complainant has frequently requested said Frank P. Roll to remove said cloud by the execution of a quitclaim of said premises to the complainant, but that he has neglected and refused so to do. Frank P. Roll answered, admitting the conveyance of said property to him, but denying that he purchased a part of said property of McGuire for the complainant, or that the complainant furnished the funds to make such purchase, or that he ever agreed to convey said property to the complainant. He alleges that about January 29, 1879, the complainant and wife, being in failing circumstances, and unable to hold said property, for a valuable consideration, and in consideration of love and affection, and of an agreement on the defendant's part to permit them to use and control the property thereby conveyed during their natural lives, executed the deed from them to him mentioned in the bill, the title to the property thus conveyed being at the time in Harriet V. Roll, the complainant's wife and the defendant's mother. The answer denies that the defendant, about August 1, 1880, or at any other time, made, executed, acknowledged, and delivered to the complainant a warranty deed or any other kind of a deed of said real estate, or any part thereof, and denies that the complainant ever had such deed. It admits that for some time the complainanthas been in possession of said real estate, not as owner, but under the agreement made by the defendant at the time of the conveyance to him, but denies that the conveyances to the complainant, or the record thereof, are in any manner a cloud upon the complainant's title, or that the complainant, or any one for him, at any time requested the defendant to remove such cloud, or execute a deed of said real estate to the complainant. Subsequently the bill was amended by making the Springfield Homestead Association a party defendant, and alleging that such association had a claim by mortgage or otherwise upon part of said real estate, but that such claim was acquired from Frank P. Roll, with full knowledge of the rights of the complainant, and subject thereto. Said association answered, admitting that it had a claim upon a portion of the property described in the bill, to-wit: Lots 1 and 2 in block 2 in Ulrich's addition to Springfield; also lot 1 in block 2, lot 1 in block 3, lot 1 and the north 10 feet on lot 2 in block 4,-all in Roll's second addition to Springfield; that on the 3d day of May, 1886, said Frank P. Roll, having the legal title of record to said lots, his wife joining with him, executed, and on the 5th day of June, 1886, delivered, to said association a mortgage on said lots to secure his promissory note for $2,200, dated May 3, 1886, said mortgage being recorded June 9, 1886; that on the 16th day of May, 1889, said Frank P. Roll being in default in the payment of said mortgage and note, a decree of foreclosure was entered in the circuit court of Sangamon county, and that in pursuance of said decree said lots were sold to said association for $1,900, and that the master executed and delivered to said association a certificate of purchase therefor, which is still held by said association, said lots not being redeemed from said sale. Said answer denies the execution by Frank P. Roll to the complainant of any deed conveying said real estate to him, or that said association had any notice of any claim by the complainant to said property at the time of the delivery to it of said mortgage. Said answer sets up laches on the part of the complainant in not sooner asserting his claim to said property. It further alleges that the complainant, being the owner of said real estate on the 4th day of April, 1869, and being financially involved, conveyed said property to one Riggin without any valuable consideration, for the purpose of hindering and delaying his creditors, and that, in pursuance of such fraudulent design, the complainant, on October 1, 1872, procured a deed of said property from Riggin to the complainant's wife, Harriet V. Roll; and that said Harriet V. Roll, and the...