23 N.E.2d 341 | Ill. | 1939
This is an appeal from a decree of the superior court of Cook county granting appellee, James P. Walsh, a divorce from appellant, Marie E. Walsh, on the ground of adultery, and ordering her to convey to appellant her interest in certain real estate held by them in joint tenancy. The appeal has been prosecuted directly to this court for the reason that a freehold is involved.
No complaint is made of the action of the court in entering the divorce decree, so it is unnecessary to detail the evidence establishing adultery. The question presented for review is whether the court was justified in compelling a conveyance of the real estate. The supplemental decree ordered appellant to convey to appellee her interest in two pieces of real estate, one located at 5509 Bohlander avenue, Berkeley, Illinois, and the other at 4432-36 West Madison street, Chicago.
We shall first consider the Berkeley property. An examination of the complaint discloses that it is mentioned neither in the allegations nor in the prayer. The facts alleged with reference to an equitable right in appellee to property the legal title to which is in appellant concern only the Madison street property. We have repeatedly held that while section 17 of the Divorce act (Ill. Rev. Stat. 1937, chap. 40, par. 18) authorizes a court to compel a conveyance of property held by one party, but equitably belonging to the other, such relief can be granted only when facts showing a right thereto are properly alleged in the complaint and sustained by proof. A decree cannot be rendered *256
upon facts shown by the evidence which would warrant relief unless those facts are alleged in the complaint. (Czarnecki v.Czarnecki,
With respect to the Madison street property, the complaint alleged that appellee owned this property, at the time of the marriage; that shortly after the marriage appellant requested him to have the property placed in joint tenancy. She often urged him to do so, threatening to have him arrested or placed in a mental institution if he refused, and promising to live with him as a faithful and loving wife if he did; he had the property conveyed to them in joint tenancy October 26, 1934. At the time of her promises she was contemplating abandoning appellee and her promises were a sham and a fraud. She told him her purpose in wanting the property so conveyed was to avoid the expense of probating when one of them died, and that at all times he would remain in complete possession and control of the property. Her answer denied any fraud on her part and asserted the conveyance was appellee's free and voluntary act.
The evidence shows that the parties were married October 12, 1931, at which time she was twenty-nine and he was a great deal older. The record does not show his exact age. They had no children. She had been married once before and since this divorce has again married. On proceedings instituted by appellant, appellee was incarcerated in the Elgin State Hospital April 8, 1933; he was discharged December 14, 1933. She was appointed conservatrix and October 26, 1934, her final report was approved by the probate court of Cook county and by him. All during their married life appellant, alone, managed the financial affairs of the family, and it appears she used some of the money *257 for purposes contrary to the best interests of appellee. July 23, 1935, she again instituted proceedings to test appellee's sanity, but apparently they were dismissed before trial. There is evidence that for a long time prior to the conveyance in question appellant had lived an adulterous life; at the time of executing the deed appellee said he was willing to make it if she would be "on the square" with him. The evidence further shows that at no time after the conveyance would appellant live with appellee as his wife, but always refused to perform her marital duties, and that she continued her life of adultery. Sometime in the summer of 1935 she left him.
The rule of law applicable to this case was laid down inFischer v. Fischer,
Accordingly, that part of the decree ordering appellant to convey her interest in the Madison street property to appellee is affirmed. That portion of the decree ordering her to convey her interest in the Berkeley property to appellee is reversed and the cause is remanded to the superior court, with directions to modify the decree in conformity herewith.
Affirmed in part, reversed in part and remanded, withdirections.