Svalina v. Saravana

• Decision Date: 25 October 1930
• Docket Number: No. 19863.,19863.
• Citation: 341 Ill. 236,173 N.E. 281
• Parties: SVALINA et al. v. SARAVANA et al.
• Court: Illinois Supreme Court

341 Ill. 236

173 N.E. 281

SVALINA et al.

v.SARAVANA et al.

No. 19863.

Supreme Court of Illinois.

Oct. 25, 1930.

Commissioner's Opinion.

Suit by Samon Svalina against Andrija Saravana and others. Answers and crossbill were filed, and the case was consolidated with another suit filed by Saravana. Objections to master's report and supplemental report were overruled, and, from the decree entered in accordance therewith, complainant Svalina and another appeal, and defendant Snow assigns cross-error.

Affirmed.Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

Jay J. McCarthy and John B. Fruchtl, both of Chicago, for appellants.

Sissman & Sissman, of Chicago (Peter Sissman, of Chicago, of counsel), for appellee William H. Snow.

Smietanka, Poulton & Bryant and William T. Dickerman, all of Chicago (John J. Poulton, of Chicago, of counsel), for other appellees.

PARTLOW, C.

On October 5, 1924, appellant Samon Svalina filed his bill for partition in the circuit court of Cook county against Andrija Saravana, Lucija Saravana, Anna Yelich, William H. Snow, and others. Answers and a cross-bill were filed, the case was consolidated with another suit for partition filed by Saravana, and the cause was referred to a master to take the evidence and report his conclusions. The master took considerable evidence, none of which has been certified to this court. He found that Svalina was not entitled to partition under his original bill, that the one-half interest claimed by him belonged to Anna Yelich, as charged in her cross-bill, and various equities between the parties were determined. Objections to the report were made by Svalina and Snow, and they were overruled. They were renewed as exceptions before the chancellor, were again overruled, and a decree was entered substantially as recommended by the master. Samon Svalina and Gela Svalina, his wife, have appealed to this court, and Snow has assigned cross-errors and has filed a separate brief.

Appellants in their brief state that the findings of fact as made by the master and recited in the decree are conceded, and that the only issue upon this appeal is that both the master and the court by the decree erred in their conclusions of law as applied to the facts.

The original bill of Svalina alleged that he was the owner in fee simple of one-half of the real estate in question, which was conveyed to him by Mate Yelich on August 18, 1924; that Saravana was the owner of the other half, both interests being subject to a mortgage made by Saravana and Yelich on January 23, 1922, to the Crown Building & Loan Association for $5,000; that a contract was executed on May 29, 1923, between Yelich and Saravana, in which Yelich agreed to sell to Saravana his one-half interest in the premises for $3,500; that Anna Yelich claimed an inchoate right of dower in one-half of the premises as the wife of Yelich on account of her failure to sign the deed to Svalina; that Snow filed in the recorder's office of Cook county an affidavit in which he claimed that he had a judgment of $5,000 against Yelich which was a lien on the property. Anna Yelich in her answer alleged that she was the wife of Mate Yelich and did not join in the conveyance by him to Svalina; that at the date of this conveyance she had a bill for divorce pending against Yelich; that a judgment was afterwards rendered in her favor for $972 against Yelich after the divorce was granted; and that the conveyance from Yelich to Svalina was made for the purpose of defrauding her of her rights in the property. The answer of Saravana set out several judgments held by him against Yelich. It set up the contract of sale between him and Yelich, and alleged that Saravana paid $1,025 as earnest money on the contract; that Saravana was ready, able, and willing to perform the contract, but that Yelich refused to perform; that Yelich, with intent to cheat and defraud Saravana, made the pretended conveyance to Svalina for a pretended consideration; that Svalina received the title with notice and knowledge of the rights of Saravana and with the intention to aid Yelich in cheating and defrauding Saravana; that Svalina held the title in trust for Yelich, subject to the rights of Saravana and the creditors of Yelich; and that Yelich, after making said contract, delivered to Saravana possession of the premises.

On February 3, 1925, while the Svalina bill was pending, the Crown Building & Loan Association filed its bill to foreclose its mortgage. The makers of the mortgage and their wives, Svalina, and all judgment creditors, were made parties to the bill. On January 4, 1926, the premises were sold under a decree for $7,800 to a stranger to the suit. On January 22, 1926, Svalina redeemed from the mortgage sale. The sale left a surplus of $882.99, which was insufficient to pay the liens of Saravana and the other creditors of Yelich.

After the redemption by Svalina, Saravana on January 26, 1926, filed a bill for partition of the premises, in which he alleged that he was the owner of one half thereof; that he had a contract with Yelich to buy the other half, which contract was in writing and was recorded; that he paid Yelich $1,025 earnest money, and was always ready, able, and willing to perform his contract, but Yelich refused to perform; that on May 9, 1924, Saravana recovered two judgments against Yelich, amounting to $580, on which executions were issued and delivered to the bailiff within one year, which judgments were liens upon the property; that Yelich, with intent to cheat and defraud Saravana and hinder and delay his other creditors, fraudulently made the deed to Svalina for a pretended consideration of $3,500; that Anna Yelich did not join in the deed; that Svalina participated in the fraudulent transfer and received the title with notice of the rights of Saravana and with an intent to aid Yelich in cheating and defrauding Saravana and other creditors. The bill set out in detail the judgments and claims of the various creditors of Yelich. Yelich was personally served, but was defaulted. The other defendants appeared and answered.

The two bills for partition were consolidated, and the order of consolidation specified that all testimony admitted should stand as evidence in each case. The master heard the evidence on the consolidated bills and made a report thereon. After the report was made, Anna Yelich was granted leave to file a cross-bill, in which she alleged that Yelich, to defraud her and other creditors, conveyed his interest to Svalina; that the deed was a sham and a fraud and no consideration was paid therefor; that she obtained a judgment in her divorce case against Yelich at the November term, 1925, of the circuit court of Cook county for $972; that execution was issued and placed in the hands of the sheriff and a levy was made upon the premises; that they were sold, and that she was the purchaser and a sheriff'sdeed was issued to her on June 29, 1927; that Frank Mastick also obtained a judgment against Yelich on May 15, 1925, in the circuit court of Cook county for $1,031.13; that an execution was issued and levied on the interest of Yelich in the premises; that there was a sale, and Mastick was the purchaser; that a sheriff's deed was issued to him on June 9, 1927, and he subsequently conveyed his interest to Anna Yelich; that an undivided one-half interest in the premises was in Yelich until the same was sold by the sheriff; that, by reason of her sheriff's deed and the deed from Mastick, Anna Yelich was the owner of the undivided one-half interest formerly owned by her husband. The prayer was that the deed from Yelich to Svalina be set aside as a cloud on her title and that the premises be partitioned. Snow filed an answer to the cross-bill, in which he denied that Anna Yelich was entitled to relief under her cross-bill, and alleged that she was bound by the former report of the master. Saravana filed an answer admitting the matters set out in the cross-bill. Svalina filed his answer to the cross-bill and asked strict proof as to the judgments of Anna Yelich. He alleged that in the foreclosure suit all of the parties to this suit were defendants in that case, and that it was found by the master and decreed by the court that Svalina had a deed from Yelich to an undivided one-half interest in the premises, and that Anna Yelich was estopped by that finding in the decree from claiming any right under her sheriff's deed.

Evidence was heard by the master upon the cross-bill of Anna Yelich and a supplementary report was made by him. In his original report he found that the property was originally purchased by Yelich and Saravana; that a mortgage was made by them to the building association, as above described; that Yelich conveyed to Svalina; that a bill was filed to foreclose the mortgage, and there was a sale and a redemption therefrom; and that Anna Yelich did not join in the conveyance to Svalina, and the same was subject to her inchoate right of dower. The report found that there was a contract of sale between Yelich and Saravana, and that $1,025 was paid on the purchase price. It set out the various judgments against Yelich in favor of Saravana and Anna Yelich. It found that on May 19, 1922, Snow procured a judgment in the circuit court of Cook county against Yelich for $5,000, that no execution was issued on the judgment prior to the transactions in question, and that the judgment was not a prior lien upon the premises. It found that Yelich and Svalina conspired to cheat and defraud Saravana and other creditors, and that Svalina held title to the premises in trust for Yelich; that all the parties to this suit were parties to the foreclosure proceeding; that Yelich did not intend to sell his interest in the premises to Svalina, and Svalina did not intend to purchase the same; that Svalina loaned Yelich $500, and Yelich gave the deed in question to Svalina as security for the loan; that the remainder of the purchase...