Totten v. Totten
| Decision Date | 06 October 1920 |
| Docket Number | No. 12938.,12938. |
| Parties | TOTTEN et al. v. TOTTEN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by Edith Totten and others against Howe Totten, in which Harry Totten and another filed an answer, and Howe Totten a cross-bill. From a decree on cross-bill for Harry Totten, complainants appeal.
Affirmed.
Leslie A. Needham and Morris St. P. Thomas, both of Chicago, for appellants.
Burry, Johnstone & Peters, of Chicago, for appellee Harry Totten.
Appellants filed a bill in the circuit court of Cook county in July, 1917, against their brother, Howe Totten, and others, for a partition of certain real estate in the village of Winnetka, in said county. Harry Totten and his sister, Melissa Susan Totten, filed an answer, and Harry Totten filed a cross-bill claiming certain rights in the property. After the pleadings were settled the matter was referred to a master, who heard the evidence, and recommended that the original bill be dismissed, and that Harry Totten be allowed to redeem the property under certain conditions. On a hearing before the court the chancellor in the main sustained the recommendations of the master, but changed the amount that Harry Totten should be required to pay in order to redeem, finding that he should be permitted to redeem within 90 days after the entry of the decree on the payment to Enoch Totten's children of $3,555.18, or, if the case was appealed, by paying that sum within 90 days from the final order of the Supreme Court. From that decree this appeal has been prayed by Edith and Gerald Totten.
The evidence shows that the real estate in question was acquired by Harry Totten in different parcels about 1885; that the dwelling house situated thereon, from the date of the purchase, was used by Harry as a home for himself, his father and mother, his aunt, Susan Totten, and his sister, Melissa Susan, as long as they respectively lived, and that it was still occupied by Harry at the time of this litigation as his home; that on March 15, 1897, by warranty deed in regular form, this property was conveyed by Harry to his uncle, Enoch Totten, of Washington, D. C.; that Harry's father, Henry Totten, was a half-brother, and his mother, Jane Ramsay Totten, a half-sister, of Enoch; that his aunt Susan was a full sister of Enoch; that another sister, Nancy Totten, lived a part of each year at this home in Winnetka; that Enoch died intestate in November, 1898, leaving him surviving his widow, Mary Howe Totten, who died in 1913, and appellants, Edith and Gerald Totten, and appellee Howe Totten, as his only children; that Henry Totten died in 1900 and Jane Ramsay Totten died in 1907; that Susan Totten, sister of Enoch, died in 1912; that Harry's sister Melissa Susan, died during the pendency of this litigation, in 1918. The evidence also tends to show that, before deeding this property to Enoch, Harry had placed a mortgage upon it for $2,500 to help support the relatives living at the home in Winnetka; that a year and a half's interest was due on this loan in 1897; that Harry and the other relatives living at the Winnetka home were in somewhat straitened circumstances, their principal means of support being the earnings of Harry and his sister, Melissa, who maintained a school for children in a house adjoining the home on the premises in question; that Harry, a short time before the deed was made, had lost his position and was then out of work and in bad health; that the uncle, Enoch, was a man of considerable property and a practicing lawyer, living in Washington; that because of the straitened circumstances of the Winnetka relatives, and because of his desire to assist in supporting his invalid sister, Susan, he had sent Susan $25 a month for years before his death, and thereafter his widow and children continued to do so until Susan's death, in 1912; that the other sister, Nancy, had received a like allowance from Enoch; that Enoch, because of the straitened circumstances of Harry and his immediate family, had loaned money from time to time to him before this deed was executed, beginning before 1893; that in that year the evidence shows he had loaned Harry altogether $3,650; that in 1894 this indebtedness was reduced by Harry to $350; that thereafter additional loans were made by Enoch to Harry, until in March, 1897, Harry owed $1,933.70; that before this deed was executed a suit had been brought for the foreclosure of the $2,500 mortgage; that Harry had consulted an attorney, who advised him that he had no defense and ought not to squander money in trying to oppose the foreclosure, but that he had
Harry's aunt, Susan, who was living with the family, wrote to Enoch at Washington stating some of the difficulties in which the Winnetka Tottens were involved with reference to the foreclosure proceedings and other obligations. Because of this letter Enoch then wrote to Harry asking what the situation was with reference to the property in Winnetka and other obligations, and on February 15, 1897, Harry wrote to Enoch as follows:
On the same day Attorney McClelland wrote Enoch on the same subject, and, on March 6. Enoch wrote a letter to Harry inclosing a memorandum of Harry's indebtedness to him, and saying among other things: The itemized account of Harry's indebtedness, which was included, amounted to $1,933.70. On March 11 Enoch sent McClelland, the attorney, a draft for $3,200, with this letter:
On the same day Enoch wrote Harry saying:
Harry thereafter executed said warranty deed heretofore referred to, on March 15, 1897, for the expressed consideration of $3,200, the foreclosure decree was satisfied, the abstracts of title were brought down to date and Harry assigned the insurance policies to Enoch. March 25, 1897, Enoch wrote the following letter to Harry:
The account inclosed in the letter reads:
‘Itemized statement of loans to Harry Totten by Enoch Totten and of the redemption of the Winnetka property by Enoch Totten:
+---------------------------------------------------+
¦1891, November 16th, check ¦$1,500 00 ¦
+----------------------------------------+----------¦
¦1891, December 12th, draft ¦2,000 00 ¦
+----------------------------------------+----------¦
¦1893, September 20th, demand note ¦150 00 ¦
+----------------------------------------+----------¦
¦ ¦$3,650 00 ¦
+----------------------------------------+----------¦
¦Repaid by check...To continue reading
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