Watson v. Hobson

• Decision Date: 11 November 1948
• Docket Number: No. 30517.,30517.
• Citation: 401 Ill. 191,81 N.E.2d 885
• Parties: WATSON v. HOBSON et al.
• Court: Illinois Supreme Court

401 Ill. 191

81 N.E.2d 885

WATSON

v.HOBSON et al.

No. 30517.

Supreme Court of Illinois.

Sept. 24, 1948.

Rehearing Denied Nov. 11, 1948.

Appeal from Superior Court, Cook County; Frank M. Padden, judge.

Suit by John Wesley Watson against Mella Hobson and others, for partition, wherein Sophia Willis filed a counterclaim for an accounting of rents, and Emith Whitaker and others were granted leave to become parties defendant to the complaint and were granted leave to be made defendants to the counterclaim of Sophia Willis and to file joint answers and counterclaims, both to the complaint and to the counterclaim of Sophia Willis. From a decree granting partition as prayed for in the complaint, the defendants appeal directly to the Supreme Court.

Affirmed.

Duck & McManigal, of Chicago (Thomas Marshall, of Chicago, of counsel), for appellants.

Morris K. Levinson and Samuel L. Cohen, both of Chicago, for appellees.

DAILY, Justice.

This is a proceeding arising out of a complaint for partition of real estate which was filed in the superior court of Cook county, by one of the appellees, John Wesley Watson, hereinafter called plaintiff, against Mella Hobson and others, who shall hereinafter be referred to as defendants. This cause was previously before this court on a premature appeal taken by defendants from an order of the trial court which struck their third amended answer and counterclaim for want of legal sufficiency. That appeal was dismissed because the judgment appealed from was not final. 396 Ill. 617, 72 N.E.2d 857. Further proceedings, which will be detailed later, were then held in the trial court, with the result that a decree of partition was entered on October 8, 1947, as prayed in the plaintiff's complaint. Defendants now bring a direct appeal from that decree, a freehold being necessarily involved. The first contentions made here are those which were raised on the former appeal, i. e. that the trial court erred in dismissing the defendants' third amended answer and counterclaim.

From the record before us, it appears that John Wesley Watson filed, on July 25, 1944, his complaint for partition in the superior court of Cook County, alleging that he was the owner of an undivided one-half interest in the premises involved herein, as the grantee of Sophia Willis, his elderly aunt, who still lives. Defendants named in the complaint were Sophia Willis; her sister, Mella Hobson, as the owner of the other half interest; James Hobson, the husband of Mella Hobson; the trustee under a mortgage on the premises; the real-estate manager of the building on the premises; and the tenants of said building. Sophia Willis later filed a counterclaimagainst all parties asking for an accounting for rents accruing during her occupancy. By leave of court entered on October 15, 1944, leave was granted to Emith Whitaker and George E. Murphy, and to Ernest L. Duck and Thomas A. McManigal, the latter law partners, to become parties defendant to the complaint. A short time later the same parties were granted leave to be made defendants to the counterclaim of Sophia Willis, and to file instanter their joint answers and counterclaims, both to the complaint and to the counterclaim of Sophia Willis. All defendants joined in an answer to the complaint and to the counterclaim of Sophia Willis. The Hobsons filed their counterclaim against the plaintiff and Sophia Willis, as did each of the other defendants. Later all defendants, except Sophia Willis, joined together in subsequent pleadings filed.

On motions made by the plaintiff Watson and by Sophia Willis to test the sufficiency thereof, the original and the first and second amended answers and counterclaims filed by the defendants were stricken by the trial court. When the third amended answer and the third amended counterclaim were in turn ordered stricken, the court granted leave to the defendants to plead further, but they elected to stand by their said pleadings and an order of default was entered for failure to plead over. The cause was taken as confessed and the matter was referred to a master in chancery for hearing. The defendants appealed from said order to this court and the appeal was dismissed by this court (396 Ill. 617, 72 N.E.2d 857) on the ground that the order of the trial court was not a final and appealable one.

Thereafter the cause proceeded before the master in chancery on the original order of reference. The defendants did not appear before the master after due notice was given them, and the master made a report recommending partition of the premises in accordance with the prayer of the complaint. The chancellor entered a decree approving the master's report, finding that the plaintiff and defendant Mella Hobson each owned an undivided one-half of the premises subject only to the mortgage thereon and an inchoate right of dower in James Hobson; ordered that partition be had and appointed commissioners as provided by statute. It is from this decree that the appeal herein is taken by the defendants.

This brings before this court the legal sufficiency of the defendants' third amended answer and their third amended counterclaim. Both of these documents are lengthy, they are replete with charges of family controversies over the years and it is extremely difficult to analyze the matters therein set forth. We will set forth what we consider to be the allegations of fact material to the questions involving the relief prayed at the end of each instrument. While the statements of defense and claims are worded differently in both pleadings, they are practically the same. It is alleged that Edna B. Mitchell in her lifetime was the sole owner of the premises involved herein; that she died on November 26, 1936; that Sophia Willis and Mella Hobson were sisters of advanced age and were the aunts of the said Edna B. Mitchell; that said Edna B. Mitchell in her lifetime, having expressed a desire to secure the future welfare of Sophia Willis, entered into an agreement (which defendants concede to have been an oral one) with said Sophia Willis, during a conference at which Mella Hobson, Emith Whitaker and George E. Murphy were present and participating, whereby all parties would forgive and cancel their charges against Sophia Willis for past care, and Mella Hobson should assume all future care of her sister; that on Edna B. Mitchell's death she would leave her property to her two aunts for their lives, to be their home during that time; that said property was not to be sold or divided during the lives of the two aunts; that George E. Murphy should assist his mother, said Mella Hobson, in caring for the real estate and apartment building on the premises; that upon the death of Sophia Willis and Mella Hobson, the real estate described in the complaint should go to the said George E. Murphy as remainderman. It is further alleged that after the death of Edna B. Mitchell, by consent of all parties surviving, the agreement was modified by Sophia Willis, who agreed to forthwith convey to Mella Hobson her one-half share of the property in furtherance of the latter's previous agreement to maintain and care for Sophia Willis the balance of her life.

As to the matters involving the claim of George E. Murphy, it is alleged in both pleadings that Sophia Willis and Mella Hobson became indebted to said Murphy for care of, and for repairs made on, their buildings during their period of joint ownership, and that being unable to pay him in cash, they agreed that said real estate and the rents thereon were to be held by them as security for the payment of the money due said Murphy until the same was paid, and that the said obligation was never paid or cancelled.

The allegations as to the claim of the law firm of Duck & McManigal are that the lawyers had successfully set aside a purported will of the said Edna B. Mitchell, wherein part of the premises had been left to others than her two aunts; that the lawyers had earned a large fee for such legal services which no one could pay in cash, and that Sophia Willis, Mella Hobson and George E. Murphy, who are said to have employed them, agreed that the fees of said attorneys should be a lien on the real estate and rents therefrom until the same were paid, and that the indebtedness was still unpaid.

It is set forth that Edna B. Mitchell died intestate leaving as her sole heirs and next of kin her two aunts, said Sophia Willis and Mella Hobson. Defendants alleged further that Mella Hobson began performance under her oral agreement heretofore related, to care for her sister, and was still ready and willing to continue the same until the latter's death. In conclusion they allege that all of said agreements are binding on John Wesley Watson, and charge that he had either actual or constructive notice thereof, with the result that many of his present acts constitute fraud.

In the prayer of the third amended answer, defendants ask that the partition herein be barred by reason of the promises of said Sophia Willis heretofore set forth, wherein she agreed not to divide the real estate. In the prayer of the third amended counterclaim now being considered by this court, the defendants ask the same relief as prayed for in the amended answer, and in addition they pray that the court decree that the undivided one-half of the life interest of Sophia Willis in the premises be declared to be the property of Mella Hobson subject to continuance of care of Sophia Willis in the future, and subject also to the liens of said George E. Murphy and the said attorneys thereon. There is no specific prayer in the third amended counterclaim that George E. Murphy be declared to have a remainder interest in the property.

The only promise alleged to have been made by Sophia Willis not to divide or partition is the one said to have been included in the oral conversation and agreement between the parties present when Edna B. Mitchell promised to leave the property to her aunts...