APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding.
MR. CHIEF JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 20, 1950.
Appellants filed their complaint November 28, 1945, in the circuit court of Winnebago County, seeking partition and an accounting as to certain real estate, hereinafter referred to as the "Forest Hills" property, in Rockford. On motion by the appellees to strike, the complaint as amended was stricken. An appeal was taken from that order to this court and the cause was reversed and remanded, with directions to overrule the motion to strike and require the defendants to answer the complaint as amended. 398 Ill. 377.) An answer was filed, and on the issues formed a trial was had before the chancellor, who found for the appellees and entered a decree dismissing the suit for want of equity. Appellants appeal to this court, a freehold being involved.
The principal facts as disclosed by the record are as follows: In 1921, Adolph Bergstrom and his wife conveyed the "Forest Hills" property to Adolph's mother, Ellen Bergstrom, by warranty deed, subject to a mortgage to the Rockford Life Insurance Company, in the amount of $4500. In 1924, the property became vacant and the mortgagee requested of Ellen Bergstrom that it be occupied. Ellen requested her son, Ralph Bergstrom, to move into the property, which he did. The rent agreed upon was $27 per month. Later it was found that this amount would not pay taxes and interest on the mortgage and it was raised to $35 per month. Ralph was a traveling salesman and was away from home a large part of the time, and his dealings with respect to the payments of rent were with Adolph Bergstrom, his brother, who acted for their mother, Ellen. The payments of rent were made, not regularly, but in amounts sufficient to take care of interest, taxes and other charges, when and as they came due, Adolph notifying Ralph and he turning over the money. Adolph then actually paid the various charges for his mother.
In 1929, Ellen Bergstrom owned another property called the "Rock View" property, against which there stood a mortgage of $9000, and one for $3333.45. This latter was evidenced by a note of Ellen's due February 7, 1930. The note was signed by Ellen, and three of her sons, Ralph, Adolph and J. Arthur Bergstrom. Being in financial difficulty, Ellen asked Ralph Bergstrom to pay the $3333.45 note, on which he had previously paid certain payments of interest. Ellen conveyed the "Rock View" property to Ralph for the undisputed purpose of saving it from loss through foreclosure. The "Rock View" property shortly became vacant and produced no income. Ralph discussed this with his mother and it was arranged that she would convey to Ralph the "Forest Hills" property, which is the property in controversy here, and that he assume to pay the $4500 debt against it. The value of this property at that time was about $7500. Thereafter the mother executed a warranty deed to this property to Ralph which bears the date of January 25, 1930, and which was acknowledged by her on February 6, 1930. The disposition of this deed thereafter is in dispute, but it was recorded by Ralph on April 14, 1937. Ellen Bergstrom died on December 24, 1937, at the age of 82 years. After the date of the deed in 1930, Ralph continued to pay sufficient money to Adolph to take care of the various charges in the same way as before the deed. In 1932 the "Rock View" property was lost through foreclosure of the $9000 mortgage, but the evidence shows that Ralph paid the $3333.45 note against it that Ellen had asked him to assume in 1929.
In 1935, Ralph left his job as a traveling salesman and thereafter he paid the interest, taxes and other charges against the "Forest Hills" property himself, as they came due. He kept a record book during this time in which he entered payments made and credited against them $35 each month under an entry "Rent." On the trial he explained the entries of rent were simply to keep himself informed as to the amount he had invested in the property and that he never paid any of the entries of "Rent" to anyone.
In 1934, it appears that a suit was brought against Ellen Bergstrom, as owner and Ralph Bergstrom as tenant, and others, seeking partition and accounting as to the "Forest Hills" property. The claim in that suit was by the former wife of Adolph of an interest in the property remaining in her at the time it was conveyed to Ellen Bergstrom in 1921. The answer filed in that case does not deny Ralph's status as tenant, but the suit was settled by Ralph paying to the claimant $2000, for which she executed a quitclaim deed to him.
During the years following 1935, Ralph Bergstrom continued to pay all charges against the property and by 1944 had paid off the $4500 mortgage and the property was clear. While the mortgage remained on the property taxes were levied in the name of Ellen Bergstrom until 1937, at which time the levy was changed to Ralph's name.
There is no evidence that after 1930, Ellen Bergstrom or anyone for her ever exercised or asserted any right to exercise any control over the property. Nor did any one request Ralph to account for his occupancy of the property. After the property was clear, the appellants, who are the children of Ellen, discussed the status of the property with Ralph and claimed an interest as heirs. Ralph offered to let them have it for what he had in it, which was around $10,000. This deal was never consummated. The property now has an appraised value of $15,000 to $18,000.
The principal controversy arises by reason of the events as above set forth and over testimony in the lawsuit that Ralph Bergstrom, at various times after 1930 admitted that his mother, and, after her death, the appellants, as her heirs, had an interest in the property. The record discloses that in 1942 the estate of Ellen Bergstrom was administered by J. Arthur Bergstrom, one of the plaintiffs in this suit, as administrator. The inventory filed therein does not list the property involved here as being a part of Ellen Bergstrom's estate, nor was any claim of such an interest made by the administrator in those proceedings.
Appellants assume that Ralph Bergstrom occupied the premises as a tenant and that the property was Ellen Bergstrom's at her death and descended to her heirs, some of whom are the appellants, because (1) the deed of 1930 was never delivered and therefore was of no effect, or (2) that, if it was delivered it constituted a mortgage only and that Ralph Bergstrom holds title in constructive trust for the heirs of Ellen Bergstrom.
The controlling questions thus presented are (1) Was the deed delivered? (2) If so, do the circumstances surrounding its delivery raise a constructive trust in favor of the heirs of Ellen Bergstrom?
Appellants contend the finding of the chancellor as to the delivery of the deed to the property in 1930 is against the manifest weight of the evidence and that the deed was never delivered. They point to the rules that an undelivered deed is of no effect and that the question of delivery depends upon the facts and circumstances in each case. (Staufenbiel v. Staufenbiel, 388 Ill. 511.) There can be no question about the rules. The only question presented is that of delivery. It is undisputed the deed was executed, acknowledged and placed in the hands of Adolph Bergstrom by Ellen Bergstrom in 1930. Adolph Bergstrom testified it was delivered to him by Ellen Bergstrom after its acknowledgment, with directions to deliver it to Ralph Bergstrom. That he notified Ralph to come to the store, which he was operating, and pick it up, which Ralph did shortly thereafter and took it away. Ralph testified to the same facts, and that he put it in his safe and kept it there until 1937, when he ran across it while examining the insurance policy he had on the property; that the insurance agent called his attention to the fact it had not been recorded, volunteered to have it recorded for him and did so. The fact it was recorded April 14, 1937, is not disputed.
Evidence of non-delivery consists only of the testimony of appellant J. Arthur Bergstrom that in 1933 or 1934, while he and Adolph were going through a drawer at the store, he saw the deed, remarked that it was no good, and that Adolph agreed. Adolph denied that the deed was in the drawer and testified that the paper referred to was a will of Ellen Bergstrom. Appellants point to the seven-years' lapse between the execution and recording of the deed as being corroborative of J. Arthur Bergstrom's testimony, and that it is manifestly proved thereby that there was no delivery. They rely on the case of Staufenbiel v. Staufenbiel, 388 Ill. 511. That case is not in point for factual ...