148 N.E. 37 | Ill. | 1925
This is an appeal from a decree of the superior court of Cook county dismissing for want of equity a bill filed in that court January 18, 1924, by appellant, and granting the relief prayed in the cross-bill of appellee.
The bill filed alleged, in substance, that appellant was the duly qualified executor of and trustee under the will of John A.W. Fernow, Sr., who died September 2, 1922, leaving him surviving as his only heirs, John A.W. Fernow, Jr., his son, who is appellee here, and a daughter, Marie F. Leith; that under the terms of the will appellant *326 was to preserve the trust estate, collect the rents and profits and pay semi-annually one-half of the net income to the son and daughter during their lives; that included in the inventory of the estate was certain improved property in Chicago known as 2525 Indiana avenue, title to which was claimed by Fernow, Jr., by virtue of an unrecorded deed thereto in his possession, executed by Harry L. Schmitz. The bill sought to establish title in appellant. The bill was answered by Fernow, Jr., denying the several allegations of the bill, and later he filed a cross-bill praying title be decreed in him and his title quieted.
The facts developed upon the hearing are not in dispute and are substantially as follows: About October 3, 1917, John A.W. Fernow, Sr., who was a physician in Chicago, purchased the property here involved, and title was taken in the name of Harry L. Schmitz, who was then manager of the loan and real estate department of a Chicago bank. The property had improvements upon it and carried an encumbrance. On November 2, 1917, Schmitz and his wife executed a deed to the property, which instrument was properly acknowledged and delivered to the grantee, "John A.W. Fernow," but it was not recorded. Some time thereafter, about 1919, a lease to the premises was executed by Schmitz to the Chicago Postal Pneumatic Tube Company at a rental of $100 per month. The first rental checks were sent to Schmitz, and later, upon instructions, the company sent the rent remittances direct to Dr. Fernow and continued to do so until his death. At the time of the purchase of the property, Schmitz, who had known Dr. Fernow over fifteen years, had a talk with him, and when the deed was delivered the doctor said the property was to be John A.W. Fernow, Jr.'s. Schmitz said he called the doctor's attention to the similarity of the names of the father and son and that there might be confusion about it, and the doctor said that could be fixed. Schmitz had a later conversation with Fernow, Sr., and asked if he had done anything about *327 the deed, and the doctor said he had not. About two weeks before Dr. Fernow's death he telephoned to Schmitz, saying his son, John, was going to bring the deed over, and asked him to add "Jr." after the name "John A.W. Fernow." Schmitz told Fernow, Sr., that he would want something in writing from him authorizing Schmitz to do it, and the doctor said "all right;" that he would write something and send John over with it. Schmitz did not see the doctor then or thereafter, and stated Fernow, Jr., brought over the deed and a letter signed by his father. The letter was dated August 20, 1922, and the body of it was as follows: "Confirming my telephoned request of you yesterday, I want to state that my son John will call on you and present deed to real estate at 2525 Indiana Ave. It is my wish that you add 'Jr.' to my name thus transferring the title of this property to my son John." The deed received by Schmitz from the hands of Fernow, Jr., was the same instrument Schmitz and his wife, as grantors, had on November 2, 1917, executed, acknowledged and delivered to Fernow, Sr., conveying to the doctor the property here in question. Upon receipt of the deed and letter Schmitz gave the deed to a stenographer in the office, who added "Jr." after the grantee's name, making it then appear, "John A.W. Fernow, Jr." Schmitz did not consult his wife prior to having the change made nor did he tell her that such had been done, and did not have the instrument re-acknowledged. After the deed had been changed Schmitz handed it back to Fernow, Jr., and did nothing more. This deed was not recorded after "Jr." had been added thereto. The proof shows that after the death of Dr. Fernow one month's rent for the premises was paid by the tenant to appellant and thereafter it was paid to Fernow, Jr., after he showed the deed here in question to the manager of the tube company. It also appears from the testimony of a Chicago bank officer who knew and had several conversations with Fernow and his son, that the doctor, in talking about the Indiana *328 avenue property, said, "Oh, yes; I own that." The banker also said Fernow, Jr., never claimed to own the property. In a written statement made to the same bank during June, 1920, at which time the doctor was seeking some financial aid in connection with his building operations, Fernow, Sr., listed as part of his assets, "Equity 2525 Indiana Ave., $8000," and said further in the statement that he purchased the equity in that property and was then trying to buy the twenty-nine feet adjoining it on the south and offered $300 per foot for it. Another witness said Fernow, Sr., had said his son, John, was to have the property in question.
It is the contention of appellant that the deed of November 2, 1917, by Schmitz and his wife to Fernow, Sr., was a valid conveyance, and its subsequent alteration by consent of the grantor and grantee did not invalidate the title previously conveyed; that the deed having been altered by the substitution of a grantee cannot support a claim to the property made by appellee, whose name was so substituted. Appellee contends that the deed as originally made was delivered to him by his father during the latter's lifetime and was a valid conveyance to appellee, and that the addition of "Jr." to the name of the grantee did not invalidate the conveyance; that if the deed as originally made was not a valid conveyance to appellee, then the addition of "Jr." to the name of the grantee in the original deed, with the knowledge and consent of the grantor and grantee in said deed, and the re-delivery of the instrument to the appellee, makes the deed a valid conveyance to him.
We have previously set out herein the proof developed upon the hearing and concerning which there is practically no dispute. The evidence does not warrant appellee's first contention, that the original purchase was made and the conveyance therefor delivered to Dr. Fernow with the purpose of having title vest in appellee, nor was it so considered by his father. Dr. Fernow had supervision of the property from the time of its purchase. He represented *329 to one of his bankers that he owned the property and was then attempting to buy additional property immediately adjoining it, and if he considered the son the owner there was no occasion for the related activity in having Schmitz change the instrument of conveyance by inserting "Jr." after the name of the grantee. Schmitz testified that at the time of the purchase of the Indiana avenue premises the doctor did not state for whom he was buying the property, but when he delivered the deed to the doctor the latter mentioned that it was to be John A.W. Fernow, Jr.'s property. However, when Fernow, Sr., by telephone communication requested "Jr." to be inserted in the original deed, almost five years later, Schmitz declined to do so without some writing from the doctor to that effect. Moreover, at no time did Fernow, Jr., claim to own the property until after his father's death. The determination of the case, in our judgment, depends solely upon the effect to be given to the insertion of "Jr." in the deed after the name of the original grantee.
A case much relied on by appellee is Abbott v. Abbott,
We shall cite only a few of the many cases which lay down the rule stated by Tiffany. In Carr v. Frye,
The effect of alterations in deeds was considered inWaldron v. Waller,
This court has held that not every alteration made in a deed after delivery will be void, but there may be facts connected with some alterations which will justify giving effect to the alterations. In Prettyman v. Goodrich,
Williamson v. Williamson,
Stiles v. Probst,
Adding the word "Junior" to the name of a grantee, solely for the purpose of identifying him as the real grantee, does not affect the validity of the title, (Coit v. Starkweather,
In Gibbs v. Potter,
In Clark v. Creswell,
We will not extend this opinion by referring to more authorities. In the cases we have cited, and in the notes to some of them, will be found many other cases upon the subject. With few exceptions they are in harmony in holding that when title has vested in the grantee by the delivery *334 of the deed he cannot divest himself of the title and vest it in another grantee, or re-vest it in the grantor, by an alteration or destruction of the deed. "When a person has become the legal owner of real estate he cannot transfer it or part with his title, except in some of the forms prescribed by law. The grantee may destroy his deed but not his estate. He may deprive himself of his remedies upon the covenants, but not his right to hold the property. This distinction has existed from the earliest times." Clark v. Creswell, supra.
The decree of the superior court is reversed and the case remanded, with directions to dismiss the cross-bill for want of equity and grant the relief prayed in the original bill.
Reversed and remanded, with directions.