APPEAL from the Circuit Court of Cook County; the Hon. LEONARD
C. REID, Judge, presiding.
MR. JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1950.
This is an appeal by appellant, Bernice Lasky, plaintiff and counterdefendant in the court below, from a final decree entered by the circuit court of Cook County on June 22, 1949, dismissing for want of equity her complaint for removal of cloud and to quiet title to certain real estate and, adjudging in substance, that the equities are in favor of David Smith, the defendant and counterclaimant below, the appellee herein; and, also from the final order entered by the circuit court on June 8, 1949, overruling and denying all of the exceptions of the appellant to the special commissioner's report upon a reference. A cross appeal was taken by David Smith, the defendant and counterclaimant below from that portion of the final decree adjudging that the real estate involved is free and clear of any dower in cross appellant, and also from the order of the circuit court of Cook County, overruling and denying the one exception of said cross appellant, David Smith, to the special commissioner's report upon said reference.
The record discloses that Bernice Lasky filed her complaint to quiet title to certain property in the city of Chicago, known as 536 North Clark Street. The complaint alleges that plaintiff is the owner of the property in fee simple, as grantee under a quitclaim deed from one Frank Weber, who received title by quitclaim deed dated January 10, 1930, from Mary Smith, who died intestate October 4, 1942. The complaint also alleges that certain trust deeds and mortgages, which have been fully paid and satisfied, constitute a cloud on plaintiff's title; that defendant, David Smith, claims dower in the property, as the surviving husband of Mary Smith, deceased, which dower has been extinguished by a decree of divorce entered in the city court of Calumet City, Illinois, on January 19, 1940. It is further alleged that David Smith asserts other claims against the property, all of which are invalid. The complaint prays removal of the trust deeds and mortgages from the record and cancellation of the various notes or bonds secured by them, and that the premises be conveyed to plaintiff by the Home Bank and Trust Company, free and clear of any claim of David Smith.
Defendant, David Smith, answered, claiming a one-half interest in the property under a decree of the superior court of Cook County, entered on July 10, 1928, in an action by David Smith against the Home Bank and Trust Company, to cancel a trust of this property and another property, executed by himself and Mary Smith in 1922. The answer further alleges that there appears of record a sheriff's deed against the property, issued on September 4, 1930, to Adolph H. Weseman, under a judgment obtained by him against Mary Smith, in the amount of $1000.
David Smith also filed his amended counterclaim, which alleges that on November 8, 1915, the property was purchased from Thomas Holme for $25,500, of which he and Mary Smith each contributed $6750; that title was taken in Mary Smith's name for the convenience of both parties; that Mary Smith executed a post-purchase money note and mortgage in the amount of $12,000 to secure the balance due, which is now owned by Annie Etkson and constitutes a valid first lien against the property. This contention was disposed of by a decree in the circuit court of Cook County, entered June 19, 1944, which declared that obligation barred by the Statute of Limitations, no appeal being taken from that decree. David Smith further alleges that on January 7, 1922, to secure a loan from the Home Bank and Trust Company, he and Mary Smith conveyed the property here involved, together with another piece of property located at 517 North La Salle Street, to the Home Bank and Trust Company by trust deed; that the Home Bank and Trust Company, Mary Smith and Mid-City State Bank were named as beneficiaries of the property in trust, all without knowledge of David Smith; that he thereafter filed suit in the superior court of Cook County to cancel all the conveyances, charging fraud and collusion; that a decree of that court entered July 10, 1928, adjudged that Home Bank and Trust Company held title to the properties for the benefit of David and Mary Smith, as their interests shall appear, and ordered reconveyance of both properties to them. Further, that the La Salle Street property was sold and its proceeds used to pay the Home Bank and Trust Company the sums found by the decree to be due it, but that the Home Bank and Trust Company failed to convey as ordered. The counterclaim alleges the death of Mary Smith and claims that title to the Clark Street property here involved is in David Smith as to an undivided one-half and that the remaining one-half is owned by plaintiff, Bernice Lasky, and Raymond Smith, children of himself and Mary Smith, subject to dower in David Smith, as surviving husband of Mary Smith. The counterclaim prays partition and an accounting.
Plaintiff answered the counterclaim denying that David Smith contributed to the purchase price and averred that any contribution, if any made, was a gift, and denied that the decree of July 10, 1928, was a determination of a one-half interest in the property here involved to be in David Smith. The answer further asserts that dower in David Smith was extinguished by a decree of divorce entered against him on January 10, 1940.
Counterclaimant, David Smith, replied, denying the validity of the divorce decree, and the cause was then referred to a master, who resigned during the proceedings but was appointed special commissioner to complete the hearing.
After the commissioner made his report and objections standing as exceptions were overruled, a decree was entered dismissing the plaintiff's complaint for want of equity and granting partition in accordance with the prayer of the counterclaim. The decree further ordered cancellation and release of the trust deed of January 7, 1922, from David and Mary Smith to the Home Bank and Trust Company and conveyance by that bank or its successor trustee of the property to David Smith, Bernice Lasky and Raymond Smith in the proportions found to be due them by the special commissioner. It further retains jurisdiction to state an account between the parties to determine the amounts of attorneys' fees due counsel for the various parties.
Plaintiff, Bernice Lasky, appeals from that part of the decree dismissing her complaint for want of equity and granting the prayer of the counterclaim. Counterclaimant, David Smith, cross appeals from that part of the decree which finds that Mary Smith obtained a divorce from him on January 19, 1940, and from the failure to find dower in him as to the interest adjudged to be in Bernice Lasky and Raymond Smith.
Plaintiff-appellant, Bernice Lasky, assigns twenty errors which may be reduced, in substance, to three: (1) That the admission of the testimony of David Smith and one Rudolph Frankenstein was error; (2) that the findings and recommendations of the special commissioner are against the manifest weight of the evidence; and, (3) that the claim of David Smith to an interest in the property is barred by laches.
Counterclaimant-appellee, David Smith, urges error in the finding below that the decree of divorce obtained by Mary Smith against him on January 19, 1940, was a valid decree so as to extinguish dower.
It would unnecessarily burden this opinion to point out all the details of the facts pertaining to the transactions as disclosed by this record. However, the principal controversy revolves around the testimony of David Smith and Rudolph Frankenstein. It is first contended by plaintiff that their testimony was improperly admitted and that David Smith, as husband of Mary Smith, deceased, was incompetent as a witness against the plaintiff, an heir-at-law of Mary Smith. No specific testimony is pointed out as being improperly admitted, and it is not clear just what the plaintiff's position is on this contention, but apparently she contends that David Smith is barred by section 2 of the Evidence Act. (Ill. Rev. Stat. 1947, chap. 51, par. 2.) Plaintiff's position in all the proceedings below is as grantee of Frank Weber and her claim is to the whole fee of ...