Appeal by plaintiffs from the Superior Court of Cook County;
the Hon. U.S. SCHWARTZ, Judge, presiding. Heard in the first
division of this court for the first district at the December
term, 1948. Affirmed. Opinion filed June 5, 1950. Released for
publication June 26, 1950.
MR. PRESIDING JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Plaintiffs, Lawrence A. Davidson and Doris Davidson, his wife, filed their complaint in the superior court of Cook county seeking a declaratory judgment that they, as bona fide purchasers, acquired title to certain real estate. Defendant Antonette Iwanowski filed her cross-complaint for an accounting and a reconveyance of said real estate. The master in chancery, to whom the cause was referred, found the issues of fact in favor of plaintiffs and against cross-complainant. From a decree sustaining exceptions to the master's report, entered July 1, 1948, ordering plaintiffs to reconvey said property to defendant upon the payment to them by defendant of the sum of $2,495.54, the amount found due on an accounting taken by the court upon stipulation of the parties, plaintiffs appeal.
Complaint is made that the trial court erred in finding (1) that a confidential relationship existed between the parties hereto, and (2) that the deed here under consideration, absolute on its face, was intended to operate as a mortgage. In view of the conclusions reached by us, we deem it unnecessary to determine whether or not a confidential relationship with all its legal implications existed between the decedent and plaintiff, Lawrence Davidson, but shall limit our observations to a consideration of whether or not the deed, absolute on its face, was in fact a mortgage.
Paragraph 13, ch. 95, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 83.13], provides as follows:
"Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage."
It thus becomes apparent that the determination of the disputed issue necessitates the ascertainment of the intention of the parties to this conveyance.
[1-3] That the burden of proof rests upon the party asserting a deed, absolute in form, to be a mortgage, that he must so establish by clear and convincing proof, and that parol evidence is admissible for such purpose, are well settled. Totten v. Totten, 294 Ill. 70. It has further been held that positive evidence of intention is not required. It is sufficient if the evidence is clear and convincing, even though conflicting. Kulik v. Kapusta, 303 Ill. 208, 214.
In the case under consideration the essential evidence was all adduced by interested witnesses, defendant and her daughter on the one hand, and plaintiff Lawrence Davidson on the other. Testimony as to conversations had prior to the execution of the conveyance in question, by the contending parties, was sharply conflicting, and, in view of their important bearing upon the issue here to be decided, it is advisable to review them carefully, as well as the facts and circumstances out of which they arose.
Prior to June 29, 1940, the defendant and her husband, Anthony Iwanowski, since deceased, were the owners in joint tenancy of a home located at 14227 Wabash avenue, Riverdale, Illinois, subject to a Home Owners Loan Corporation mortgage dated May 31, 1934, securing an indebtedness of $4,700, payable in monthly instalments of $39.17 and interest, plus taxes, repairs and maintenance. On June 29, 1940, the balance due on the mortgage was approximately $3,484. Defendant and her husband had purchased the lot upon which the home was built in 1927 for $2,500, and the building cost was $10,000.
Sometime in the year of 1930, defendant and her husband met plaintiff Lawrence Davidson at a civic club meeting. Davidson had been a precinct captain and after he and Iwanowski attended political meetings together they would frequently return to the Iwanowski home for a cup of coffee and sandwiches or lunch after the meeting. Iwanowski was a carpenter by trade; Davidson was a civil engineer for the Forest Preserve District of Cook County, for the Ivanhoe Park District, and for the Village of Dolton. He and Iwanowski became very close friends. During the depression Davidson got Iwanowski jobs as foreman for the P.W.A., judge of election and various odd jobs as a carpenter from time to time. In 1934, the mortgage above referred to was placed on the property. In 1935, Iwanowski was badly injured and was in the hospital for some time.
The Iwanowski home was a seven-room face brick bungalow. The attic was roughed in and no room was completed at the time of the original construction. There was a two-car brick garage on the premises. In 1938, in the hope of additional income, Iwanowski finished the incomplete second floor by building a five-room apartment so that the Iwanowskis could move upstairs and rent the downstairs apartment. Iwanowski himself did all the work of building this apartment over a period of several months with materials purchased by a son, George. Another son, Fred, occupied the first floor for a few months prior to June 1940. Davidson testified that sometime in 1938, Iwanowski called at the Davidson home and said he was going to adopt Davidson; that Iwanowski said his natural son did not want the home and he was going to let Davidson take it over; that he told Iwanowski it was a poor idea and that he had better sell it; that a few months later Iwanowski wanted to know if Davidson would take it over and Davidson again told him he should sell it; that Iwanowski told Davidson it cost between $75 and $100 a month to keep it up and that he was unable to carry the payments on the Home Owners Loan Corporation mortgage and was not able to earn enough money to pay taxes and keep the house out of default; that there were further talks along this line three or four different times in the next couple of years; that in the early part of June 1940, Iwanowski said, "I am going to give you one more chance and this is the last. It is either now or never. I have got to get rid of my property." Davidson testified that around June 20, 1940, Iwanowski came over to his house and at that time he asked Iwanowski what the latter meant by "turning the property over" to him; that Iwanowski told him he would give him a deed with the right of Iwanowski and his wife to live upstairs; that he told Iwanowski he did not know whether such an arrangement could be worked out; that he said he would like to talk to an attorney and Iwanowski said, "Let's go over to an attorney." These conversations, according to Davidson, were unattended by any third party, and Iwanowski having died long before the trial, the court did not have the benefit of his testimony.
Subsequent to this last conversation Davidson consulted and hired as his attorney one P.P. Flick. Flick was active in political affairs in the community with Davidson and was also acquainted with Iwanowski. Flick suggested that instead of a joint tenancy arrangement between Iwanowski and the Davidsons that there be an absolute conveyance by the Iwanowskis to the Davidsons, with a lease to the Iwanowskis of the upstairs apartment. It was originally suggested that the lease be for 10 years at $1.00 per year, and subsequently an option for an additional 10-year period was agreed upon.
About the middle of the last week of June 1940, Davidson, Flick and Iwanowski went to the Home Owners Loan Corporation to determine the situation with reference to the loan. Davidson expressed surprise to learn that the past due payments on the mortgage amounted only to $117.51. They looked up the taxes and found that the 1938 taxes had been paid and that, although the first instalment of the 1939 taxes was due, it was not yet in default. There were no other liens or encumbrances of any kind upon the property. In checking Iwanowski's deed they found that it was held in joint tenancy by Anthony and the defendant Antonette Iwanowski. Up until this nothing had been said to Mrs. Iwanowski about the plans of days before the deal was closed. Davidson testified that the only conversation he had with her on the subject was about three o'clock one afternoon, a few days before the deal was closed. Davidson testified that he went to her home and explained the matter to her and she said she thought it was all right. Davidson testified, "Mrs. Iwanowski was agreeable to it at the time that we were in the kitchen. She said she thought it was all right. She did not ask me what I was paying for the property. Nothing was ever said about my reconveying the premises to them in the future. . . . The only occasion that I talked to her was this one upstairs in the kitchen." This conversation took place the last week in June, a few days before the conveyance was executed.
The substantial dispute in the testimony involves the conversations that took place between Davidson, decedent and Mrs. Iwanowski, some in the presence of the daughter Amelita Iwanowski, during the few days before the signing of the deeds, commencing on the afternoon that Davidson, Flick and decedent had gone to the HOLC office. Mrs. Iwanowski testified that sometime before six o'clock on an evening in the last week in June decedent came home with Davidson; that the daughter Amelita was there; that the four of them had supper together; that her husband introduced the conversation by saying, "We was today in the city." Mrs. Iwanowski testified, "My husband started to tell he went with Mr. Davidson and Mr. Flick to the Home Loan to see if there isn't any lien, mortgage, something. They find out there was three payments that wasn't paid. And then they went to the City Hall. . . . So Mr. Davidson says (to decedent), `. . . You going to give me your deed as security and I going to pay all expenses and repairs and heating so you could live upstairs.' He said something about paying the mortgage, he say, `Any time you wish to get your home back,' he said `you pay me what I spend on that and you could have it.' . . . He said, `I am going to pay on taxes and mortgages' and furnish the heat. He said he going to move. I say, `What for are you going to do that?' He said they going to pay $50 a month, something like that, they going to pay the expenses. That is all what was telling. My husband agree. He was always talking with me but for me was awfully funny, that. I never heard anything about this before that time, this was the first time they were talking that story. I was surprised then and I going to lose my home. Davidson said, `You don't have to worry about that, you won't lose your home, it is security.' I said, `What are you going to get for me?' He said, `I am going to give you a lease.' He said, `You could pay that and after another ten years you could pay or your children could pay. You don't have to worry.' I don't believe him because I work so hard, I invest my money. I don't know how that going to make I don't like it. I don't like it. He say, `You don't have to worry,' because he was such good friends with my husband." (Italics ours.) On cross-examination she said (relating what Davidson had said): "He was not going to buy, just help out my husband because they was such good friends like father and son. He said, `I wouldn't let you down.' My daughter was present." Mrs. Iwanowski stated that Davidson came each day after that trying to persuade her to agree; that they were talking about changing the entrance to the building so that the apartments could be reached by separate stairways without intrusion on the ground floor apartment. Mrs. Iwanowski stated that on Sunday before the Monday the deed was signed Davidson came again, telling them that he would pick them up early Monday morning. She testified, "On Sunday it was talking, be all right, I won't lose the home, that I was satisfied on that. . . . He (Davidson) said, `Don't worry, you going to get your home back as soon as you pay what I owe for that, invest in that house, you get back your deeds.'" She testified that on Monday, Davidson drove them over to the lawyer's house where the deed was signed about eight o'clock in the morning; that Mr. Flick said to sign and gave no further explanation than that she and her husband sign the papers; and that Davidson gave her husband a check for $10. Amelita Iwanowski substantially corroborated her mother as to the conversation that took place in her presence. Mrs. Iwanowski testified that Anthony Iwanowski died on October 10, 1940, a little over three months from the date the deeds were executed; that his health was poor at the time the transaction took place; and that he died from lung trouble. She testified that Mr. Iwanowski did not read the lease to her or the deed to her and that she did not read the documents herself.
Amelita Iwanowski testified that she lived with her parents after the upstairs was completed in the latter part of 1938; that she had given her father and mother financial assistance from time to time prior to that time, and that she assisted them in keeping up the payments on the house, as did her brothers; that during the time she was living at home in the latter part of 1938 Davidson came over frequently to visit her father, as often as two or three times a week; that her father thought an awful lot of Davidson and called him "my boy, my son"; that he would put his arm around Davidson's shoulders and say, "Gee Dick is a wonderful man, he is an honest man"; that they spent a good deal of time together; that her father would frequently say, in making decisions, "Dick suggested this" or "Dick thought it would be better to do this way"; that he relied entirely upon Davidson's advice; that the father had financial difficulties and was unable to get steady employment. She testified, with reference to the conversation related by Mrs. Iwanowski which took place the evening after the visit to the HOLC, that in response to her mother's objections to giving a deed Davidson said, "You are not going to lose your home, the only thing is he is going to give me a deed as security for the home, and I am going to make the payments on the home, pay the taxes, make all the necessary repairs and heat the place. . . . This will be security to me, and as security to you I am giving you a lease. . . . In the event you feel you are able to get back on your feet and make the payments I will be more than glad to give you the deed back to the house whenever you are ready to do that, and we will figure out how much I put out after deducting $50 a month for rent, and you pay me whatever you owe me, and you have ten or twenty years to pay, and if you can't pay the children will pay it back to me." She further testified, "My mother did not approve of all this, she still said, `I don't want to give up my home, I don't want to give up my home. I am sure we could take care of it in our own way.'" Again referring to the same conversation, she testified, "Mr. Davidson said, `You don't have to worry, Mrs. Iwanowski, you are not losing your home. I am taking over the deed as the security and whenever you are ready to take the home back I will be more than glad to give it back to you, after we decide whatever you owe us.' He described how that would be determined. He said that Mother had the security, Mother and Dad both had a lease as security so they would have a place to live . . . that they would have ten to twenty years to pay back whatever Dad owed them, or Mother owed them. They figured $50 to be a fair price for rent, and if the expenses, taking in the HOLC loan and the taxes and the heating of the home and making the improvements, necessary improvements, that would be deducted, they would figure how much that was and deduct the rent for that same period of time, and the difference would be paid back to them. . . ." (Italics ours.) She further testified that on Sunday of that week, following the conversation referred to, "Mr. Davidson came over and asked Mother if she reached her decision, if she had made up her mind as to what she was going to do. By that time I guess Mother was pretty well convinced she wasn't losing her home, after all, the deed was security for the Davidsons and the lease was security for Mother and Dad, and she said that sounded all right to her."
The undisputed evidence is that in 1940 the reasonable value of the property was $9,000 and that at the time of the trial in 1946 it could be sold for $15,000.
From the foregoing, several significant conclusions are inescapable: first, that whether or not the facts created a confidential relationship as a matter of law, there was certainly great trust reposed by the old carpenter in the younger civil engineer whom he wished to adopt; second, that as a result of the transaction the plaintiffs were enabled to move into a comparatively new seven-room apartment in premises which represented an investment of $12,500, the value of which was then approximately $9,000, with no obligation on their part other than to afford living quarters upstairs for the defendant and her husband and to advance from time to time the future mortgage payments, and payments for taxes amounting in all to less than $100 a year, neither of which was in substantial default; third, that the deed in question was made subject to the mortgage to the HOLC, but the grantee did not in the deed assume and agree to pay the mortgage indebtedness; the undertaking was that he would advance from time to time sufficient funds to ...