Peck v. PeckPeck v. Peck
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Shirley 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
Paul and Shirley continued to work and live together until June 14, 1956, when Shirley left taking her clothing and their child. 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 divorce but did permit Paul to amend the answer and counterclaim already filed. The latter amendment charged Shirley with fraud, alleging in
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 evidence 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 appearance 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
Hearings on the consolidated cause commenced on June 18, 1957, and were concluded on June 20, 1957. During this period Paul offered no further 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 substantially 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 appealed 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. ”
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.) 4 F.2d 101, Eckenooth v. Egan, (Sup. Ct.) 46 N.Y.S. 666, and Needham Piano and Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 750. In each case, however,’ it appears that neither the parties nor the proof were the same in the
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., 155 Misc. 771, 280 N.Y.S. 935; Borman v. Oetzell, 382 Ill. 110.) These, then, are the purposes to be achieved by section 51, and the only precaution imposed by the statute is that substantial rights be not prejudiced. (Goldey v. Bierman, 201 App. Div. 527, 194 N.Y.S. 373; McCaskill, Illinois Civil Practice Act Annotated, pp. 127-128.) “Within the limits of this anomaly, however, there should be such liberal construction as to simplify practice and expedite justice in so far as the power lies within the courts so to do.” (Hurley v. Rose, 236 App. Div. 517, 260 N.Y.S. 67.) In light of these principles, and the liberal purposes of the Civil Practice Act, it is our view that consolidation may be effected even though one cause has commenced, when the court finds it reasonable and convenient to do so, and provided, of course, that substantial rights will not be prejudiced. Unless such prejudice did result in
Appellant next contends, however, that she was substantially prejudiced by that portion 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, 399 Ill. 497; London Guarantee and Accident Co. v. American Cereal Co. 251 Ill. 123.) Such a position misapprehends that the effect of consolidation was to try the two suits at the same time. Cf. Lutticke v. Lutticke, 406 Ill. 181.
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.
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
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 have 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 appeal and a reviewing court is not justified in disturbing them unless they are manifestly against the weight of the evidence. (Johnson v. Johnson, 1 Ill.2d 319; Maley v. Burns, 6 Ill.2d 11.) Here, as did the chancellor below, we find ample proof to support and justify the findings of the master in these respects. On the state of the record, therefore, there
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, 280 Ill. 372.) Written articles of agreement are not necessary, for a partnership may exist under a verbal agreement, and circumstances may be sufficient to establish such an agreement. (Rizzo v. Rizzo, 3 Ill.2d 291; Einsweiler v. Einsweiler, 390 Ill. 286.) The requisites of a partnership are that the parties must have joined together to carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interest in the profits. (Parish v. Bainum, 306 Ill. 618; Ill. Rev. Stat. 1951, chap. 1061/2, par. 6.) Relying principally upon Heyman v. Heyman, 210 Ill. 524, and Kurtz v. Kurtz, 10 Ill. App. 2d 310, wherein the existence of partnerships between husband and wife were implied from the facts and circumstances, appellant contends the chancellor erred when he found that no partnership existed in this case. We do not find, however, that the circumstances here are as persuasive or compelling as those in the authorities relied upon. In the Kurtz case the proof showed not only that the wife had contributed
Appellant argues at length that wills executed by the parties on the occasion of the creation of the joint tenancy
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, 12 Ill.2d 441.
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
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 pleaded have, in some instances, been held a sufficient basis for the relief prayed, (Fischer v. Fischer, 245 Ill. 426; Coonce v. Coonce, 296 Ill. 585; Walsh v. Walsh, 372 Ill. 254,) an examination of the evidence in this cause discloses insufficient proof to support the charge of fraud. While there is some evidence that appellant’s conduct was discussed both before and after the reconciliation, there is no direct proof that the execution of the deed was predicated upon any promise of appellant. It is to be noted too that the deed creating the joint tenancy was executed exactly one year after the reconciliation had been effected, thus raising doubt as to whether the reconciliation was in any manner conditioned upon the execution of the deed. More important, however, is the lack of proof that appellant had been guilty of adulterous conduct prior to the execution of the deed. The only proof of adultery relates to acts occurring approximately three years after the conveyance was made and at a time when the parties had become completely estranged and this litigation
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 sale 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, 343 Ill. 234; Hill v. Reno, 112 Ill. 154.) The object of partition is to enable those who own property in common to sever their interests, so that each one may take possession of, enjoy, and improve his separate estate at his own pleasure. (Mechling v. Meyers, 284 Ill. 484; Bowman v. Austin, 393 Ill. 593.) The law favors a division of land in kind,
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, 396 Ill. 65; Brod v. Brod, 390 Ill. 312,) appellee established no special or superior equities, and the decree refers to none,which would serve as an equitable basis for denying appellant her right to partition. Instead the decree refers only to inconvenience and possible hardship that may result to appellee from the change in the relations of the parties to the estate. We find the rule to be, however, that in the absence of statutory provision to the contrary, the absolute right to partition yields to no consideration of hardship, inconvenience or difficulty. (Hill v. Reno, 112 Ill. 154; Tiffany, Real Property, 2d ed., vol. 1, sec. 204, pp. 710-711;
Concluding the numerous assignments of error, appellant contends that the court erred when it found that appellee was entitled to an estate 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, 410 Ill. 533; Brod v. Brod, 390 Ill. 312.
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.