Stukis v. Stukis

• Decision Date: 17 February 1925
• Docket Number: No. 16271.,16271.
• Citation: 146 N.E. 530,316 Ill. 115
• Parties: STUKIS v. STUKIS et al.
• Court: Illinois Supreme Court

316 Ill. 115

146 N.E. 530

STUKIS

v.STUKIS et al.

No. 16271.

Supreme Court of Illinois.

Feb. 17, 1925.

Suit by Anton Stukis against Mary Stukis and others. Decree for complainant, and defendants Hattie Burlew and Lillian Warndorff appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.

C. W. Greenfield, of Chicago, for appellants.

Otto H. Beutler and Clyde C. Fisher, both of Chicago, for appellee.

DUNN, J.

The circuit court of Cook county entered a decree of partition on a bill filed by Anton Stukis against Mary Stukis and others, from which Hattie Burlew and Lillian Warndorff,two of the defendants, have appealed. They claimed to be the owners in fee each of one-eighth interest in the premises, while the decree found that they had no interest in them. The property was conveyed on April 7, 1885, by Carl Edward Wagner and his wife to Rudolph Perlick and Henrietta Perlick, his wife, the parents of the appellants, by a deed in the following language:

‘This indenture, made this 7th day of April, 1885, between Carl Edward Wagner and Catharina Wagner, his wife, of the city of Chicago, in the county of Cook and state of Illinois, party of the first part, and Rudolph Perlick and Henrietta Perlick, his wife, as joint tenants and not as tenants in common, of the city of Chicago, in the county of Cook and state of Illinois, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of $6,350 in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged and the said party of the second part forever released and discharged therefrom, have granted, bargained, sold, remised, released, conveyed, aliened, and confirmed, and by these presents do grant, bargain, sell, remise, release, convey, alien, and confirm, unto the said party of the second part, their heirs and assigns forever, all the following described lots, pieces, or parcel of land, situated in the county of Cook and state of Illinois, and known and described as follows, to wit: Sublots 4 and 5 in lot 2 in block 38 in Canal Trustees' subdivision of the west one-half, and that part of southeast quarterwest of river of section 21, township 39 north, of range 14 east of the third principal meridian. To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, their heirs and assigns, forever.’

covenants of seizin, against incumbrances, and of general warranty followed. Perlick occupied the premises and was living on them with his family when he died, on December 13, 1899. By his will be devised a half interest in his estate to his wife and a fourth each to his two children, the appellants, and directed that after his wife's death all his property should revert to his children, the appellants. On December 14, 1921, Mrs. Perlick, who had married again and was then Mrs. Schoessow, conveyed the premises to Anton Stukis and Mary Stukis as joint tenants.

The appellants' claim is that the Wagner deed conveyed the premises to Rudolph and Henrietta Perlick as tenants in common, and that their father's will devised to each of them one-fourth of his one-half of the premises, while the appellee claims that the deed conveyed to the elder Perlicks a joint estate, which upon the death of Rudolph passed to Henrietta, whose deed conveyed the premises in fee to the complainants.

[1] At common law a conveyance to two or more persons was deemed to create a joint tenancy, and words or circumstances of negation were necessary to avoid creating a joint tenancy by such a conveyance. At the date of the Wagner deed, section 5 of chapter 30 of the Revised Statutes of 1874, which was first passed in 1827, was in force, the effect of which was to reverse this rule of the common law, so that at the time the deed was executed a conveyance to more than one person created an estate in common in the grantees, unless the premises were expressly declared to pass, not in tenancy in common, but in joint tenancy. Gaunt v. Stevens, 241 Ill. 542, 89 N. E. 812;Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81. The only question for our consideration is, therefore, whether the language of the deed expressly declares the premises to pass, not in tenancy in common, but in joint tenancy. The use of those words is not essential. The statute requires only that the language shall clearly show that the premises are not to pass in tenancy in common, and that the purpose of the deed is to create an estate in joint tenancy. The particular words in which the intention is expressed are not important. Slater v. Gruger, 165 Ill. 329, 46...