Ure v. Ure

• Decision Date: 05 December 1906
• Citation: 79 N.E. 153,223 Ill. 454
• Parties: URE et al. v. URE et al.
• Court: Illinois Supreme Court

223 Ill. 454

79 N.E. 153

URE et al.

v.URE et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Rehearing Denied Dec. 5, 1906.

Appeal from Circuit Court, Cook County; J. W. Mack, Judge.

Suit by Margaret Agnes Ure and others against John F. Ure and others. From a decree for defendants, plaintiffs appeal. Reversed and remanded.Sherman C. Spitzer, for appellants.

Robert Zaleski and Castle, Williams & Smith (Ben M. Smith, of counsel), for appellees.

VICKERS, J.

1. This is an appeal from a final decree in the same case which was formerly reviewed upon a writ of error. Ure v. Ure, 185 Ill. 216, 56 N. E. 1087. The will of Margaret Ure was then construed, the decree of the circuit court giving a different construction to the same was reversed, and the cause was remanded for further proceedings in accordance with the views expressed in the opinion then filed.

[223 Ill. 458]2. Margaret Ure was the owner of lots 1 to 7 and an undivided one-half of lot 8, in John C. Ure's subdivision of certain real estate in Rogers Park, in Cook county, a plat of which subdivision will be found in the statement of the case of Henderson v. Hatterman, 146 Ill. 555, at page 558, 34 N. E. 1041, at page 1042. She also had a life estate in the other undivided one-half of said lot 8, with remainder to her two sons, Robert A. Ure and John F. Ure, in equal parts. By her last will she devised her real estate to her said sons, who survived her, devising to John F. Ure the absolute title in fee to one-half and to Robert A. Ure the life estate in the other one-half, with remainder to his heirs, and created a trust for the management and control of the share devised to Robert and his heirs. After the death of their mother John had title in fee to one-half of all the lots in the subdivision, and Robert had a life estate in one-half of lots 1 to 7 and in one-fourth of lot 8, and the fee in the remaining one-fourth of said lot 8. By the decree of the circuit court, which was reversed on the writ of error, it was decreed that the trust had been executed by the statute of uses so as to vest the legal title in fee in Robert, and that the trustee and the minor daughter, Margaret Agnes Ure, had no right, title, or interest in the property; but we held that the trust was an active one, not executed by the statute of uses, and that Robert took a life estate with remainder to his heirs. Ure v. Ure, supra.

3. The decree of the circuit court, which practically dismissed the trustee and minor child from the suit, was entered on January 4, 1892, and commissioners were afterwards appointed, who made partiton, allotting to John the north seven acres, being lots 1 to 7, and to Robert the south five acres, being lot 8, subject to a right of occupancy of a cottage by Charles and Anne Condy, which right has terminated, and subject to $531 owelty to be paid to John. The reversal of that decree by this court was on April 17, 1900, and in the meantime, while the decree was in full force, not appealed from and unreversed, there were a number of changes in the title, out of which numerous complications have arisen. Both parties have made resubdivisions, and Robert also executed trust deeds on part of the lands set off to him.

4. On December 23, 1892, John made a resubdivision of lots 1 to 7 in a different manner from the original subdivision, and sold lots 1 to 6 in his resubdivision, as follows: On October 15, 1892, lots 1 and 2 to Augusta C. O. Becker for $4,000; on June 5, 1893, lot 5 to Johann C. Roessler for $2,000; on October 19, 1893, lot 6 to Robert Zaleski for $2,000; and on November 17, 1893, lots 3 and 4 to Henry Koeber for $1,700. Lots 1, 2, and 6 afterward passed to Pauline F. Hatterman, the present owner. John retained lot 7, on which he resides, and made improvements at a total cost of $7,000.

5. On April 5, 1893, Robert borrowed of William E. Hatterman $1,400, and secured the loan by a trust deed on a tract 150 by 150 feet, in the northwest corner of lot 8. On October 19, 1893, he conveyed to John lot J, in the southeast corner of lot 8, for $3,750, of which $531 was the owelty awarded in the partition, $200 for a team of horses, and the balance in cash. In June, 1896, Robert made his resubdivision, excepting lot J, into 17 lots, numbered 1 to 17. On November 1, 1896, he borrowed from Hatterman the further sum of $2,600, secured by a trust deed on lots 1 to 17 of the resubdivision. Out of the first Hatterman loan Robert received $571.25 cash, $617.55 was paid for special assessments, and the balance went for commissions, abstracts of title, and other expenses. Of the second loan he received $599.26 in cash, $1,690.24 was paid for taxes and special assessments, $1,680.24 was paid for taxes and special assessments, interest on the first loan, commissions, abstract, and releasing two trust deeds, on which other parties had refused to loan on account of the condition of the title.

6. On January 6, 1897, the wife of Robert petitioned the probate court of Cook county to appoint a conservator for him, and afterward, upon a trial by jury, he was found to be a drunkard and a spendthrift, incapable of managing or caring for his estate. On March 19, 1897, there was a judgment to that effect, and Alexander Glanz was appointed conservator and qualified. Afterward, on March 3, 1898, Eugene W. Yeomans exchanged three practically worthless equities in Chicago real estate with Robert for his interest in lots 1 to 4 and 6 to 17 of the resubdivision. Lot 5 was occupied by Robert as a homestead. At the time of the conveyance by Robert to Yeomans application was made to a title and trust company for a guaranty policy on the property conveyed by Robert, but the company refused to guaranty the title until the decree of 1892 should be affirmed by this court. The title and trust company having refused to pass the title except upon that condition, Yeomans agreed to bring the case to this court and secure an affirmance of the decree declaring the legal title to be in Robert, and that his minor daughter, Margaret Agnes Ure, and the trustee, had no interest in the property. Yeomans thereupon sued out a writ of error from this court in the name of said Margaret Agnes Ure, by L. H. Jennings, her next friend, who also appeared and filed a brief for her as plaintiff in error. Gilbert & Ripley, who were attorneys for Yeomans, appeared and filed a brief for defendants in error. The sole object of the writ of error was, not to secure a reversal of the decree, but, on the contrary, to obtain an affirmance of it, which was shown by the investigation in the circuit court after the cause was reinstated there. Mr. Jennings testified before the master that he did not write the brief for plaintiff in error; that it was brought to him by Mr. Gilbert, one of the attorneys on the other side, and Jennings signed it and it went in his name; that Yeomans was to be at the expense of taking the case up and having it affirmed by this court; that it was a question of fixing up the title, and the expectation was that a decision affirming the decree would be obtained from this court. According to his testimony the same attorneys wrote the briefs on both sides, and the attorneys used the name of a minor child in a fraudulent attempt to secure an affirmance of a judgment against her interest. The scheme was not successful, but the interests of the parties were declared by this court under fixed rules of law, in accordance with the terms of the willl and the intent of the testatrix. The difficulties now in the case grew out of the transactions before the decree was reversed, and raise peculiar questions not easy of adjustment.

7. The remanding order was filed in the circuit court and the cause was redocketed, whereupon an order was entered vacating the decree of January 4, 1892, and all subsequent proceedings thereunder, including the partition of the premises. Supplemental pleadings were filed, setting up the facts which occurred after the entry of the original decree before the reversal. During that time three children had been born to Robert, and they were brought in with the necessary additional parties. Issues having been joined, the cause was referred to a master in chancery to take proofs, with his conclusions as to the facts and the law. The master reported the evidence with conclusions that the resubdivisions made by John and Robert of the parts set off to them, respectively, should stand on account of conveyances thereunder; that the title to the streets and alleys had vested in the city of Chicago; that, as to lots 1 to 6 of John's resubdivision, Pauline F. Hatterman was the owner of lots 1, 2, and 6, Henry Koeber of lots 3 and 4, and Johann C. Roessler of lot 5; that Hatterman had valid liens on lots in the part set off to Robert under his two trust deeds; that the conveyance from Robert to Yoemans should be set aside for fraud and because it was void under the statute, but that Yoemans should be reimbursed for taxes and interest paid by him; that there should be another partition between John and the trustee for Robert and his children, or, if the premises were incapable of partition, they should be sold and the proceeds divided according to the rights of the parties as found by him, and that on account of the premises yielding no income and the heavy burden of taxes and special assessments, interest, and other carrying charges, the interests of the trust estate demanded the sale of the same and the investment of the proceeds. He found that the only use for which the premises were adapted was for subdivision into residence lots; that Robert or his children had no other means or property except such as was involved in the suit; that while John had expended about $7,000 on lot 7,...