Szymczak v. Szymczak

• Decision Date: 21 February 1923
• Docket Number: No. 15012.,15012.
• Citation: 306 Ill. 541,138 N.E. 218
• Parties: SZYMCZAK v. SZYMCZAK et al.
• Court: Illinois Supreme Court

306 Ill. 541

138 N.E. 218

SZYMCZAK

v.SZYMCZAK et al.

No. 15012.

Supreme Court of Illinois.

Feb. 21, 1923.

Suit for partition by Marcin Szymczak against Walervja Szymczak and others, in which Mary Szymczak was substituted as party complainant after the death of the original complainant. From a decree denying the interest of the complainant in a part of the land sought to be partitioned, complainant appeals.

Reversed and remanded, with directions.

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

Hugo J. Thal, of Chicago, for appellant.

Beach & Beach, of Chicago, for appellees.

STONE, J.

The appellant seeks review of a decree of the circuit court of Cook county in a partition suit in which Marcin Szymczak, her father-in-law, filed the original bill on December 31, 1918. During the hearing on the bill and answer Marcin died. On February 14, 1920, the appellant, by leave of court, became a party complainant and filed her supplemental bill alleging that, while the original bill and answer thereto were pending on reference to the master, and after considerable evidence had been taken, the original complainant, Marcin Szymczak, died, leaving a last will, in which he devised and bequeathed to appellant the sum of $1,500 to be invested for the benefit of her three children, Marcin's grandchildren, and also to her the rest and residue of his real and personal property, nominating her as executrix. The original bill set out that the property, described as lots 16, 22, and 23 in Ward's subdivision in the city of Chicago, was owned in fee by Marcin and his sons, John Wladyslaw, and Frank; that on August 12, 1902, he had purchased lot 16, taking a deed thereto to himself and his wife, Waleryja, an appellee herein, as tenants in common; that on September 2, 1905, he perchased lots 22 and 23, taking thereto a warranty deed to himself and his wife as joint tenants; that the title of John, Wladyslaw (hereinafter referred to as Walter), and Frank was obtained by warranty deed dated May 1, 1916, from Marcin's wife and mother of the grantees, by which deed she conveyed to them her undivided one-half interest in lots 16, 22, and 23; that Marcin did not join in the execution of this deed; that he and his wife were living separate and apart, and had been since February, 1915, but were not divorced. The original bill also alleges that Marcin's wife on May 1, 1916, executed a trust deed to another son, Stanislaw, purporting to secure a note for $1,000; that a portion of the building on lot 22 was the homestead of Marcin and his wife; that he is entitled to the undivided one-half interest in all of these lots in fee simple and an inchoate right of dower in the other undivided half, all subject to the inchoate right of dower of his wife and the estate of homestead in lot 22; that his sons John, Walter, and Frank are each entitled to an undivided one-sixth of all of the premises in fee simple, subject to the inchoate right of dower of Marcin and the incumbrances set out in the bill; that his wife is entitled to an estate of homestead in lot 22 and an inchoate right of dower in the undivided one-half interest of Marcin; and that the son Stanislaw has an interest in the undivided one-half previously owned by Waleryja in all of said property as grantee in the trust deed and owner and holder of the note secured thereby. The bill prays partition.

The supplemental bill contains, substantially, the same allegations as to the rights and interests of the parties, except as hereinafter noted, and that the supplemental complainant has become entitled to the interest of Marcin, the original complainant, in and to the premises described in the bill. The supplemental bill also avers that the sons John, Walter, and Frank have conveyed their interests in the premises to their mother, Waleryja, but that Frank, notwithstanding the deed made by him, still retains an interest in the premises for the reason that he was a minor at the time of the making of the deed and incapable of making a conveyance of real estate; also that the $1,000 note executed by the mother to Stanislaw has been satisfied and canceled, though the trust deed has not been released. The supplemental bill avers that the widow has a dower right in the interest of the supplemental complainant and a homesteadin a portion of lot 22, and prays that partition be had, that the homestead of the widow be set off to her and her dower assigned.

The defendants answered the supplemental bill, and Waleryja, Walter, and John Szymczak denied any right of the supplemental complainant in the premises, for the reason that the warranty deed executed by Waleryja to her sons John, Walter, and Frank was executed by her in contemplation of immediately impending death, as she then verily believed; that there was no consideration for the deed and it was never delived; that after the recovery of Waleryja from her illness her sons reconveyed their interests to her, and by reason of these facts the deed never became effectual as a conveyance.

On April 14, 1920, Waleryja Szymczak filed her cross-bill, alleging that prior to the death of Marcin Szymczak the title to lots 22 and 23 was held by him and the cross-complainant as joint tenants and not as tenants in common; that a certain note and trust deed which had been given as a lien on lot 23 was paid off by the cross-complainant without the assistance of Marcin. The cross-bill contains the same averments as are found in the answer to the original and supplemental bills pertaining to the circumstances of her making the deed and note and trust deed to all of the premises to her said sons; and that by reason of the death of Marcin she became vested with title to all of lots 22 and 23 in fee simple, clear of any claim whatever of the supplemental complainant, Mary Szymczak. The cross-bill prays that cross-complainant be found to be the owner in fee simple of said lots and of an undivided one-half of lot 16 as tenant in common, with right of dower therein, and that the deed from her to her sons may be declared to be a cloud upon her title and removed as such.

Appellant answered the cross-bill, denying the material averments thereof, and on replication being filed the cause was referred to the master, who found that the deed made by Waleryja Szymczak on May 1, 1916, was made for the purpose of giving title to the property to her sons, and that it severed the joint tenancy up to that time existing between her and her husband as to lots 22 and 23, and found the issues in favor of the supplemental complainant, and recommended a decree in accordance with the prayer of the supplemental bill. On hearing on exceptions the chancellor sustained the same, holding that there was no delivery of the deed of May 1, 1916, and no intention on the part of Waleryja that there should be an immediate conveyance of her interest, but that the same was an attempted testamentary disposition, and decreed that partition be had of lot 16 held by Marcin and Waleryja Szymczak as tenants in common, and that the title to lots 22 and 23 be in Waleryja, and that the deed of May 1, 1916, be removed as a cloud on the cross-complainant's title. The decree also finds that Waleryja Szymczak occupied the whole of lot 22 as a homestead.

The principal assignments of error agrued relate to the holding of the chancellor concerning the deed of May 1, 1916, and the principal question in the case is whether or not this deed had the effect of severing the joint tenancy which had up to that time existed between Marcin Szymczak and his wife, Waleryja. A deed by a joint tenant to a stranger severs the joint tenancy (Lawler v. Byrne, 252 Ill. 194, 96 N. E. 892), and if the deed of May 1, 1916, was a valid conveyance of the interest of Waleryja, the effect of it was to sever the tenancy, and a reconveyance to her by her sons did not have the effect of re-establishing the joint tenancy. This appears not to be questioned by appellees, but their contention is that the deed of May 1 was not a valid deed and was not delivered; that it was an attempted testamentary disposition.

[5] In cases of a voluntary execution of a deed and the delivery of it to the grantee the presumption arises that it was delivered with the intention to convey a present interest, and the burden rests upon one who avers a different intention to prove such by a preponderance of the evidence. O'Brien v. O'Brien, 285 Ill. 570, 121 N. E. 243;Valter v. Blavka, 195 Ill. 610, 63 N. E. 499;Reed v. Douthit, 62 Ill. 348. The rule is established in this state that a deed cannot be delivered to the grantee as an escrow, to take effect upon a condition not appearing upon the face of the deed, but such deed becomes absolute at law unless delivery is made to a stranger. Ryan v. Cooke, 172 Ill. 302, 50 N. E. 213;Weber v. Christen, 121 Ill. 91, 11 N. E. 893,2 Am. St. Rep. 68;Stevenson v. Crapnell, 114 Ill. 19, 28 N. E. 379;McCann v. Atherton, 106 Ill. 31. The delivery of a deed is necessary to give it binding effect, and delivery is a question of intent. Jordan v. Davis, 108 Ill. 336; Ryan v. Cooke, supra. With these rules in mind...