Sturdyvin v. Ward

• Decision Date: 05 December 1929
• Docket Number: No. 19447.,19447.
• Citation: 168 N.E. 666,336 Ill. 594
• Parties: STURDYVIN v. WARD et al.
• Court: Illinois Supreme Court

336 Ill. 594

168 N.E. 666

STURDYVIN

v.WARD et al.

No. 19447.

Supreme Court of Illinois.

Oct. 19, 1929.

As Modified on Denial of Rehearing Dec. 5, 1929.

Commissioner's Opinion.

Suit by George A. Sturdyvin, as trustee in bankruptcy of Charles T. Birch, against Patrick Ward and others. From the decree, complainant appeals.

Affirmed.Appeal from Circuit Court, Champaign County; Franklin H. Boggs, judge.

B. L. Kirk, of Champaign (Green & Palmer, Henry I. Green, and Oris Barth, all of Urbana, of counsel), for appellant.

Schaefer & Dolan and Dobbins & Dobbins, all of Champaign, for appellees.

PARTLOW, C.

Appellant, George A. Sturdyvin, as trustee in bankruptcy of Charles T. Birch, filed his bill for partition and relief in the circuit court of Champaign county against Birch, the bankrupt, Margaret Birch, his wife, Genevieve Birch, his daughter, Patrick Ward, his father-in-law, the First National Bank of Rantoul, and Thomas C. Jackson, judgment creditors, and the Trevett-Mattis Banking Company and the Mutual Benefit Life Insurance Company, mortgagees. The bill alleged that Birch was the owner of 80 acres of land and that he and Ward were the owners of 240 acres of land, all in Champaign county; that one piece was subject to a mortgage to the Mutual Benefit Life Insurance Company for $15,500, dated January 26, 1923, executed by Ward and Birch; that another piece was subject to a mortgage to the Trevett-Mattis Banking Company for $12,000, dated February 14, 1924, executed by Ward and Birch; that the claims of the two judgment creditors were avoided by the bankruptcy proceeding; that Genevieve Birch has been in possession of all of the lands as tenant under a lease which expired March 1, 1928, but that she remained in possession and was indebted for the 1927 rent; that all of the mortgage indebtedness was incurred jointly by Birch and Ward and was the equal obligation of both as principals, but that Ward claimed that the entire amount was the indebtedness of Birch, and that by reason of this claim the title was clouded and depreciated. The prayer was for a partition of the premises held in joint tenancy, that the court adjudicate the controverted question of priority between the bankrupt estate and Ward, and that the claims of Ward be removed as clouds on the title. The judgment creditors made default and the mortgagees answered, setting up their mortgages. Genevieve Birch answered, admitting possession as a tenant and averring her readiness to account for rent due to the party entitled thereto. Margaret Birch answered, alleging that she had a right of dower in all of the lands and a homestead in one piece. The bankrupt answered, setting up his homestead. Patrick Ward answered, alleging that he and Birch owned one quarter section and half of the other as tenants in common; that the entire mortgage debt on each was the individual debt of Birch and that Ward joined in the notes and mortgages merely as surety; that Birch's interest was burdened with the mortgage debt, and Ward was entitled to have the entire interest of Birch applied to the payment of the mortgage before any part of Ward's interest was applied on the same; that by reason of the provisions of the mortgages and in order to prevent foreclosure thereof after Birch had failed to pay interest and taxes, Ward was compelled to pay certain interest and taxes, and he prayed for subrogation to the rights of the mortgagees against the interest of appellant; that Birch in his bankruptcy schedules admitted that the mortgage debts were his own and that Ward received no part thereof, and that appellant had collected certain rent which he had failed to apply to delinquent mortgage interest and taxes. Upon issue being joined the cause was referred to a master to take the evidence and report his conclusions of law and fact. The master recommended a decree substantially as alleged in the answers. Exceptions were overruled and a decree was entered which found that the total amount of the mortgages was a lien upon Birch's interest and that all of his interest must be used to satisfy the mortgage indebtedness before the same could be charged against any portion of the interest of Ward; that Birch's interest in the land must be held accountable for the interest and taxes paid by Ward; and that the land, or the proceeds derived from the sale thereof, was subjected to the inchoate right of dower of Margaret Birch. From the decree entered this appeal was prosecuted.

Two questions are argued by appellant on this appeal: First, whether the evidence shows that Ward was only a surety for Birch; and, second, if he was a surety, whether he was entitled to the relief granted by the decree. There is no question raised as to the ownership of the land, or as to the two mortgages and the amounts due thereon, or that Birch occupied part of the lands as his homestead, or that his daughter occupied the lands as a tenant.

In chief, in support of the allegations of the bill, appellant, his solicitor, and Birch testified, and the deeds and mortgages were introduced in evidence. None of these witnesses testify to any facts relative to the suretyship of Ward; therefore the only evidence offered by appellant on that question consisted of the mortgages and the deeds. The presumption of law arising therefrom is that whether two or more persons are the owners of land as tenants in common they are equal owners thereof.

In support of the allegations of the answers, Charles T. Birch, his brother, William H. Birch, and his brother-in-law, William Joyce, testified, and certain deeds and documents were admitted in evidence. The evidence shows that Ward was 84 or 85 years of age. He had been blind for 6 or 7 years, and evidence was offered tending to show that his memory was not very good. Birch had looked after most of his business, and for a year or two had received and used for his own benefit all of the rents from this land. For 6 or 7 years Ward had lived in the Birch family, but at the time of the trial he was with relatives in Wisconsin. On October 27, 1906, Joseph D. Jackson conveyed to Birch and Ward the east half of the northeast quarter of section 21 for a stated consideration of $10,000. On November 12, 1914, Thomas Birch conveyed to Charles T. Birch the west half of the northeast quarter of section 21 for a consideration of $9,000. On this land Birch and his family resided. On February 23, 1924, Peter Seeber conveyed to Birch and Ward the southeast quarter of section 10 for a consideration of $21,200. This was known as the Bok farm. All of this land is in township 22 north, range 9 east of the Third principal meridian, in Champaign county.

Prior to March 1, 1924, Birch and Ward were the owners of 308 acres of land in Moultrie county, Ill., which they sold to William H. Birch for $58,520, subject to mortgages of $25,000. Charles T. Birch testified that in payment for this land his brother deeded him a farm of 200 acres in Franklin county for a stated consideration of $14,000 and subject to a mortgage of $7,000; that the brother paid a check of $4,000 drawn by Birch on the First National Bank of Sullivan; that the brother paid $8,052.45 in cash and gave his note for the balance, which note was subsequently paid. The proceeds of the sale of this real estate belonged equally to Birch and Ward, and one of the questions in this case is as to the disposition of about $23,000 in cash received from this sale by Birch. The only evidence as to its disposition is the testimony of Birch. It is apparent from the evidence that Birch conducted this transaction, collected the money, and Ward had very little, if anything, to do with it. Birch testified that no part of the money was paid to Ward; that about $10,000 was applied by Birch upon the purchase price of the southeast quarter of section 10, the balance was used by him in payment of his personal obligations, including about $6,400 to the First National Bank of Rantoul, of Which William H. Wheat was president, and about $1,800 to Thomas C. Jackson, who was a judgment creditor; and that Ward received no part of it, except the interest in the southeast quarter of section 10, one-half of which was conveyed to him. On the trial counsel for Ward submitted to counsel for appellant checks amounting to $14,000 drawn by Birch on this fund for his personal use, the most of which went to Wheat and Jackson. Birch also testified that the balance of the purchase price of the southeast quarter of section 10 was procured from the $12,000 mortgage of February 14, 1924, to the Trevett-Mattis Banking Company, which was on the southeast quarter of section 10. The share of Ward in the proceeds of sale of the Moultrie county farm was more than sufficient to pay for one-half of the land in section 10. The mortgage to the Mutual Benefit Life Insurance Company was dated January 26, 1923, was for $15,500, and was on the northeast quarter of section 21. Birch testified that out of this $15,500, $9,500 was paid on a former mortgage of $12,000 upon the same permises and $6,000 was used by him in the payment of his personal obligations; that the prior mortgage of $12,000 was put upon these premises about 1915 or 1916 by Ward and Birch, and that it was for the benefit of Birch; and that Ward did not receive any part of it.

On cross-examination Birch was asked if he did not testify before the referee in bankruptcy that he put $10,600 into the purchase of the Bok farm. He answered that he did not remember. The record of his evidence before the referee was admitted to show that he did so testify. At the close of the evidence on behalf of appellee, appellant, in rebuttal, called Birch as a witness and had him identify a written statement dated February 1, 1926, purporting to have been given by him to the First National Bank of Rantoul as a basis for credit. Birch testified that the statement was not genuine; that there were certain matters in it which were not there when he...