delivered the opinion of the court:
Shirlеy J. Peck and Paul N. Peck have filed an appeal and cross appeal respectively, from a decree of the circuit court of Knox County which adjudicated their marital status, fixed the custody of a child, and determined certain property rights between them.- A freehold is involved so as to give us jurisdiction of a direct appeal.
Pertinent factual background shows that the Pecks were married in March, 1950, and that one child was born to such union. Paul, who was the owner and operator of a drive-in restaurant, had previously been married to one Betty Peck, from whom he was divorced in 1948, and had custody of a son born of that marriage. Shirley Peck was a waitress in the restaurant and continued her employment there after the marriage. A rift developed between the couple in 1952 when Paul filed a complaint for divorce charging adultery and Shirley filed a counterclaim charging cruelty, but they became reconciled and the causes of action were dismissed early in 1953. At the time of the marriage Paul was the owner of lots 255 and 258 in Prospect Heights Addition to the city of Galesburg, the first being improved with a residence in which the couple made their home and the second with a portion of the drive-in restaurant. Subsequént to the marriage, title to lots 256, 257 and 212 was -acquired in the ríame of Paul- alone, while title to lots- 213 and'214 was acquired in the names of Paul and Shirlеy as joint tenants. Lots 213 and 214- are vacant,"while lots-256, 257.and 212 are being used in conjunction with "the restaurant. In the fall-of 1953 Paul and Shirley- consulted an attornéy concerning the • property and," shortly thereafter, deeds were executed which made them joint- tenants' of ■ all séveñ lots. At the same time Paul and Shirley executed separate wills. The will of Paul left his property to Shirley at his death, but in the event both died in a common disaster, his estate was left in trust for his children. The will of Shirley, on the other hand, left her entire estate to Paul but in the event of simultaneous death her entire estate was left in trust for the benefit of her child.
Paul and Shirley continued to work and live together until June 14, 1956, when Shirley left taking her clothing and their сhild. Both agree that she left after a quarrel, but whether she was ordered to do so or left of her own accord is a point in conflict. Six weeks later Paul took the child off the street a short distance from where Shirley was residing with an aunt and, although he thereafter kept the child in his custody, it was his testimony, categorically denied by Shirley, that he informed her she could arrange to visit the child at any time.
Six weeks after the separation, on July 31, 1956, Shirley, alleging ownership of an undivided one-half interest, filed a complaint for partition of the seven lots heretofore described. Paul filed an answer in which he admitted the conveyance to Shirley, but denied her right to partition, and alleged by way of counterclaim that Shirley held her title in trust for him by reason of the fact the conveyance had been for the sole purpose of protecting his title from Betty Peck, Paul’s first wife, in the event Paul should die and Betty be named as guardian for the minor son born to their marriage. Shirley denied the latter averments. On September 14, 1956, Paul filed a motion for leave to file an amendment to his answer and counterclaim and for leave to file a counterclaim for divorce. When Shirley resisted the motion, alleging among other things that the “sixty-day” provision of the Divorce Act had not been complied with, the chancellor, on September 24, 1956, denied leave to file a counterclaim for divоrce but did permit Paul to amend the answer and counterclaim already filed. The latter amendment charged Shirley with fraud, alleging in substance that the conveyance to her had been made after the divorce action of 1952 had been dismissed in contemplation that she would refrain from her adulterous conduct and resume her marital duties, but that she had in fact continued her adulterous conduct with certain persons on certain dates after the conveyance had been made to her. Shirley’s reply likewise denied these allegations.
On November 8, 1956, as the result of a motion by Shirley, the partition action was referred to a master to hear and report the evidenсe together with his findings and conclusions thereon. Evidence was taken in the months of March, April and May, 1957, and while it is Shirley’s contention that the proof was completed on May 15, 1957, she concedes and the record shows that the proof was not closed. It should be noted at this time also that the master, over Shirley’s objections, heard evidence of her adulterous conduct during the hearing on the partition suit.
Paul N. Peck, as plaintiff, filed a praecipe for summons under the Divorce Act on September 24, 1956, an action which apparently followed his unsuccessful efforts to file a counterclaim for divorce in the partition suit. Shirley Peck was served and entered her appеarance on September 26, 1956. Sixty days following the praecipe, on November 24, 1956, Paul filed a complaint for a divorce and custody of the child, in which he pleaded charges of adultery against Shirley which paralleled the charges of adultery forming the basis of his claim of fraud in the partition suit. On May 13, 1957, after a motion to strike the complaint for a divorce had been denied, Shirley filed an answer and a counterclaim to the divorce action wherein she sought a divorce on the grounds of cruelty. Additionally, she claimed and sought a dissolution of a partnership in the drive-in restaurant, prayed for an accounting of the profits of the partnership, for the appointment of a receiver over the partnership assets, for custody and support of the child, and for alimony, costs and attorney fees. Thereafter, on May 17, 1957, Paul filed a motion to consolidate the two causes of action and such motion was allowed on June 3, 1957. By an accompanying order the chancellor referred the cause, as consolidated, to the same master and ordered that evidence theretofore taken in the partition suit be considered as having been taken in the consolidated cause.
Hearings on the consolidated cause commenced on June 18, 1957, and were concluded on June 20, 1957. During this period Paul offered no furthеr evidence of adultery other than that already received in the partition suit and the bulk of the testimony related to Shirley’s counterclaim for a divorce and to her claim of a partnership. Subsequently, in the consolidated cause, the master found that Paul was entitled to a divorce and custody of the minor child; that Shirley and Paul each owned an undivided one-half interest in the real estate and that partition should be granted; that Paul was entitled to an estate of homestead; and that Shirley had no right, title or interest in the restaurant business. After objections and exceptions of both parties had been disposed of, the chancellor entered a decree substantiаlly in conformity with the master’s findings, the one exception being that he did not order partition of the real estate. Instead, the decree found that a great loss and hardship to Paul would result from a public sale of the premises, and directed that a determination of the fair market value, mortgages, liens and other indebtedness should-be made and that Paul should pay to Shirley one-half the market value after the deduction of all liens, mortgages, other indebtedness and homestead. Concluding, the decree provided that if ■ Paul did not make such payment within ten days after the value was determined,- the real estate should be sold “as in partition.” Both parties have appealеd from the ¿spects of the decree unfavorable to them and, -for convenience, we shall hereinafter refer to Shirley J. Peck as appellant and to Paul N. Peck'as appellee. "
The first contention raised by appellant is that the chancellor erred in permitting the partition and divorce actions to be consolidated. Section 51 of the Civil Practice Act provides: “An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right.” (Ill. Rev. Stat. 1955, chap, 110, par. 51.) In construing this statute, and its predecessors, we have held thаt the consolidation of separate causes for trial is discretionary with the trial court and our courts have found no abuse of discretion where the separate causes are of the same nature, arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially upon the same evidence, and when a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party. (See: Black Hawk Motor Transit Co. v. Illinois Commerce Com.
Appellant does not contend to the contrary under this point but asserts only that the law requires- that an application for consolidation must always be made before the trial of either cause of action has commenced. While it may be agreed that the application must be timely, we do not find that the inflexible rule contended for exists. As authority for her position appellant has cited Shooters Island Shipyard Co. v. Standard Shipbuilding Corp. (3rd cir.)
Consolidation, it has been said, makes for expedition, conservation of the time of the court, avoids duplication of effort, and saves unnecessary expense. (Consolidated Dairy Products Co. v. Loft, Inc.,
Appellant next contends, however, that she was substantially prejudiced by that pоrtion of the consolidating order which directed that evidence theretofore taken in the partition action should be considered as evidence taken in the consolidated cause. The record reveals, however, that the acts of adultery which formed the basis for a charge of fraud in the partition' action were the same acts upon which appellee predicated his prayer for divorce and were therefore subject to identical proof by identical witnesses. Counsel for appellant cross-examined the adultery witnesses at length and, although it is now contended that cross-examination would have been conducted along different lines had the question of divorce been present, we are not informed wherein any substantial rights were prejudiced. It is also now stated that evidence “might very well have been produced to rebut” the testimony of the adultery witnesses. The record shows, however, that appellant did in fact present her aunt as a witness to rebut one of the charges of adultery, and no reason suggests itself why she was not at liberty to introduce further evidence of such nature, if any she had, when the hearing was resumed in the consolidated cause. Within this point appellant also attacks the propriety of the chancellor’s order on the basis of authorities which hold that testimony given in a former action is, except in instances of death, inadmissible in a subsequent action. (George v. Moorhead,
Throughout the hearing, the master made no rulings on certain objections to evidence but, as was the practice in Knox County, admitted the evidence subject to the objections. Appellant insists this practice was erroneous and that some of the evidence admitted was incompetent. Where a cause is referred to a master to take the testimony and report his conclusions on the law and facts, he is usually governed by the ordinаry rules of evidence by which a court would be governed, and he should hear and exclude evidence as if the hearing were before the court. It is equally true, however, that unless the evidence is clearly inadmissible, the better practice is for the master to receive it subject' to objections, so that it may be considered without re-reference of the cause in the event the court should deem it admissible. (Wylie v. Bushnell,
The next contention advanced by appellant is that she should have been granted a divorce under her counterclaim charging appellee with extreme and repeated cruelty. Such a position is erroneously based, however, upon the premise that the testimony of adultery given in the partition hearing could not stand as proof of the identical charges of adultery in the consolidated action. What has been previously said disposes of this objection. Furthermore, although Illinois recognizes the principle of recrimination which permits a defendant to show that a plaintiff is also' guilty of such misconduct as would entitle the defendant to a divorce, adultery is an exception in that other grounds, such as cruelty, will not bar a divorce for adultery. (Zimmerman v. Zimmerman,
Contention is also made by appellant that the findings to the effect that she was guilty of adultery and that she was not a fit and proper person to havе the care and custody of the six-year-old son are against the manifest weight of the evidence. We do not believe that a detailed recitation of the facts upon which these findings are based would serve any useful purpose in this opinion. Suffice it to say that we have made a critical examination of the record as a whole and of the specific proof to which the appellant refers. In such a case as this it is the province of the master in the first instance to determine the facts and, while his findings do not carry the same weight as those of a jury, or of a chancellor where the witnesses have testified before him, his findings are entitled to due weight on aрpeal and a reviewing court is not justified in disturbing them unless they are manifestly against the weight of the evidence. (Johnson v. Johnson,
It is the settled law of this State that, as between the parties, the existence of a partnership relation is a question of intention to be gathered from all the facts and circumstances. (Goacher v. Bates,
Appellant argues at length that wills executed by the parties on the occasion of the creation of the joint tenancy in October, 1953, are also indicative of an intent to form a partnership. The language relied upon, however, is just as susceptible to a construction that appellee had no intention of relinquishing his operation and control of the restaurant until his death. When all the facts and circumstances are considered, it is our conclusion that appellant has failed to show by competent testimony that a business partnership existed in this case, or that she has proved special equities which would justify a court of equity to order that any share of the business be transferred to her.
Appellee, by his cross appeal, contends that the decree was in error insofar as it adjudged appellant to be the owner of an undivided one-half interest in the real estate, thus giving effect to the joint-tenancy deed executed in October, 1953. From the pleadings and the arguments presented to this court, it appears that appellee is relying upon three separate theories. First, that the parties did not intend appellant would be vested with absolute ownership; second, that special equities justify a decree ordering appellant to reconvey her interest to appellee; and, third, that the deed making appellant a joint tenant was procured by fraud. As regards the first theory, which is presented but briefly and without citation of authority, appellee asserts that the only purpose for the creation of the joint tenancy was to protect the title to the real estate for his children in the event he predeceased his first wife, that appellant was fully aware of the deed’s limited purpose and did not intend to acquire absolute ownership, and that she therefore holds her title in trust for him. There is no proof of such trust, other than the testimony of appellee, thus his contention is sufficiently overcome by pointing out that express trusts in land may not be created by parol. Ill. Rev. Stat. 1955, chap. 59, par. 9; Pollard v. Pollard,
Appellee’s second theory is bottomed upon section 17 of the Divorce Act (Ill. Rev. Stat. 1955, chap. 40, par. 18,) whereby the chancellor is empowered, whenever it appears that either party holds title equitably belonging to another, to compel the conveyance thereof to the party entitled thereto on such terms as he deems equitable. To justify such a conveyance, however, it is also well established that where special equities are claimed they must be alleged and proved, and that relief can be granted only in accordance with the allegations of the complaint sustained by the proof. (Skoronski v. Skoronski,
In his amended counterclaim to appellant’s complaint for partition, appellee alleged that appellant had procured her joint tenant’s interest by fraud and prayed that she be compelled to reconvey the premises to him. Appellee now insists that the chancellor erred in denying him relief on this ground. Briefly, it is the theory of the counterclaim in question that the joint tenancy in the real estate was created as a result and part of the reconciliation effected after each had filed complaints for divorce in 1952, that appellant, for the sole purpose of obtaining pecuniary advantage, induced appellee to make the conveyance by pleas, entreaties and promises that she would be faithful in the future, but, that appellant never contemplated the resumption of her marital duties and thereafter continued her adulterous conduct, thus perpetrating a fraud on appellee which entitles him to a reconveyance. While the facts pleadеd have, in some instances, been held a sufficient basis for the relief prayed, (Fischer v. Fischer,
After finding appellee and appellant each own an undivided one-half interest of the real estate, the decree then made the following provision with regard to its sale: “The business established and operated upon said real estate is an integral part thereof and can be removed only at a great loss, and to require a public salе of said real estate would be manifestly unfair to the owner of said business, forcing him to meet bids on said property; that a determination of the fair market value of said property and of the mortgage, liens and other indebtedness should be made; that Paul N. Peck should pay to Shirley J. Peck one-half (*4) the fair market value thereof after deduction of all mortgages, liens and other indebtedness and homestead within 10 days such value shall have been determined, and that in default thereof said real estate be sold as in partition.” While it could be noted that the decree is incomplete in that it fails to direct who shall determine the value of the land, we agree with appellant that it was completely improper in this case. The right to partition is imperative and completely binding upon courts of equity where a case is fairly brought within the law authorizing such proceeding. (Murphy v. Murphy,
Although it has been stated that a court of equity will not permit a partition proceeding to be used to circumvent established principles of law or public policy, (Bydalek v. Bydalek,
Concluding the numerous assignments of error, appellant contends that the court erred when it found that appellee was entitled to an estatе of homestead. Her arguments and conclusions are, however, predicated upon the erroneous decree. We think it clear that appellant forfeited her homestead interest and that appellee, if a sale proves necessary, is entitled to have the entire value of the homestead set off to him before equal division of the proceeds is made. Wiegand v. Wiegand,
For the reasons stated the decree of the circuit court of Knox County is reversed insofar as it orders appellant to sell her undivided one-half interest in the real estate to appellee, but is affirmed in all other respects. Accordingly, the cause is remanded to that court for the entry of a further decree in conformity with the views expressed herein.
Affirmed in part and reversed in part and remanded, with directions.