APPEAL from the Circuit Court of Cook County; the Hon. E.J.
SCHNACKENBERG, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 15, 1951.
Amanda Mills, the appellant, originated this action in the circuit court of Cook County on May 5, 1944, and sought to have a certain quitclaim deed, by which she is purported to have conveyed title to a parcel of real estate to Albert J. Kraetsch, set aside and declared void as a cloud upon her title to said real estate. At the termination of numerous pleadings, hearings and orders, the court, on June 29, 1949, entered a decree dismissing the cause for want of equity. A freehold being directly involved, appellant now seeks review of that decree by this court.
The factual background developed in the record shows that Albert J. Kraetsch and Kittie Kraetsch, husband and wife, were legally separated in 1921, but never divorced. By terms of the separate maintenance decree Kraetsch deeded certain property to Kittie, while other matters relating to her support and interests were reserved for future court action. At that time they had four children, who remained in the custody of the mother. They are now all adults and apparently have sided with the mother. On March 9, 1922, Kraetsch purchased a five-acre chicken farm, the real estate here in dispute, but took title in the name of Harold C. Wilson, his nephew. Thereafter Kraetsch lived on the farm with the appellant, Amanda Mills, in a meretricious relationship. During the time title was in Wilson's name, Kraetsch exercised complete ownership over the property, paying taxes and insurance in his own name and selling all products of the farm for his benefit. He likewise made many improvements. A short time prior to May 13, 1939, Kraetsch, being in ill-health, offered the property for sale, and on said date entered into a written contract, in his own name, for sale of the premises to one Seymore.
Simultaneously, Kraetsch consulted with his attorney, Theodore F. Ehler, about taking the title out of Wilson's name. It was first planned to take a deed from Wilson with the grantee left blank, so that title could be transferred to Seymore on completion of his contract payments. After Kraetsch had executed the contract of sale, however, he advised Ehler that he did not want a blank deed from Wilson, but that he wanted the deed made to the appellant. It appears that Ehler obtained the execution of the deed from Wilson and his wife to appellant and caused it to be recorded on May 31, 1939. The next event, which occurred for certain, was that Kraetsch died on March 18, 1940. Three days later a son, Earl Kraetsch, recorded a quitclaim deed by which appellant had conveyed the premises to Albert J. Kraetsch. The deed and the acknowledgment were dated May 31, 1939. This litigation stems from appellant's efforts to have the last-described deed set aside and declared null and void.
The original complaint filed by appellant, named as the only defendants, attorney Ehler, who is alleged to have prepared the deed, and Wilburn A. Austin, another attorney who had allegedly taken the acknowledgment. It charged that on March 21, 1940, Ehler and Austin entered into an agreement and conspiracy with others unknown, and that in furtherance of it they prepared a false and fraudulent quitclaim deed, under date of May 31, 1939, purporting to convey the premises from appellant to Kraetsch. The prayer of the complaint was that defendants be ordered to deliver up the deed for cancellation and that the deed be set aside and declared void as a cloud on appellant's title. The defendants answered after the court had denied their motion to dismiss, and the cause was referred to Daniel Covelli, a master in chancery. After hearing, Covelli made his report to the court which contained a finding that the deed of May 31, 1939, was a forgery, and a recommendation that the relief prayed be granted. Defendants filed exceptions to the report and on December 31, 1946, Judge Prystalski of the circuit court entered an order sustaining the exceptions on the sole ground that the heirs of Albert J. Kraetsch had not been made parties to the action, and that they were necessary parties. The order further directed appellant to file an amended complaint.
Appellant's response to this order was to amend the original complaint, on January 3, 1947, by adding counts 2 and 3. Count 2 incorporated the original complaint by reference, then named Kraetsch's widow, his children and their spouses, and the parties in possession, as defendants along with Ehler and Austin. It charged that the Kraetsch heirs and the attorneys had entered into an agreement and conspiracy on March 20, 1940, by which Ehler and Austin were to prepare a false and fraudulent deed purporting to be a conveyance of the premises from appellant to Albert J. Kraetsch. Following this charge was an allegation that on May 25, 1939, Ehler had obtained appellant's signature to a blank quitclaim deed by trick, device and fraud, which blank deed was filled in on March 20, 1940, as above described.
Count 3 adopted the original complaint and count 2 by reference, then followed with allegations which, in effect, state that the deed executed by appellant was conditional and that it was void for lack of valid delivery to, and acceptance by, Kraetsch, the grantee. The prayer in both counts 2 and 3 was that the defendants be ordered to deliver up the deed for cancellation, and that it be set aside and declared null and void as a cloud on appellant's title.
The next events of consequence occurred on February 10, 1947, when the original complaint was dismissed as to Ehler and Austin, on their motion, because of its failure to include necessary parties; and later, on March 31, 1947, when the original complaint was dismissed as to the defendants Kraetsch, on the ground that they had not been made parties thereto. No appeal was taken from these orders which disposed of the issues raised by the original complaint. Issues were then joined as to counts 2 and 3, and the cause referred to master in chancery Bernard M. Epstein, over appellant's objection that the matter should have been re-referred to Covelli.
Epstein, proceeding de novo, held extensive hearings and on February 24, 1949, reported his findings of fact and conclusions from the evidence. He first determined that the manner of execution of the disputed deed was ineffectual to invest the title to the premises in Kraetsch, provided appellant could establish her proof by competent evidence, and provided that she was not guilty of such acts as would bar her from relief in equity. Examining the evidence on the basis of this premise, the master found that appellant was incompetent to testify against the widow and heirs of Kraetsch, thus leaving insufficient competent evidence in the record to sustain her right to relief. He further concluded that she could not prevail, even if deemed a competent witness, because she had not come into equity with clean hands, inasmuch as she was a party to a scheme, the purpose of which was to prevent Kittie Kraetsch from obtaining her inchoate right of dower in the property of which Albert J. Kraetsch had been the true owner. The master recommended that the complaint be dismissed for want of equity.
Appellant's exceptions to Epstein's report were argued before Judge Schnackenberg of the circuit court, who, on June 29, 1949, overruled them and entered a decree which dismissed Ehler and Austin from the case as not being necessary or proper parties, and dismissed the cause for want of equity as to the remaining defendants. In addition, the decree denied appellant leave to file a further amended complaint; dismissed the cause as to Kittie Kraetsch who had died during the trial; denied a motion of appellant to reconsider the order of December 31, 1946, (in which Judge Prystalski had sustained the exceptions of Ehler and Austin to the report of the first master;) and assessed costs against the appellant. This appeal follows.
The multifarious proceedings in the trial court have had the inevitable effect of bringing a voluminous record before us for review. Appellees, who are Ehler, Austin and the surviving heirs of Kraetsch, have filed a motion in this court which asks: (1) That the abstract of record filed in this court be stricken for appellant's failure to completely abstract all pertinent portions of the record; and, (2) that we strike, from the record filed, all matters relating to the proceedings before Covelli, the master to whom the original complaint was referred. The motion has been taken with the case.
The size and complexity of the record in the instant case make a determination of what should have been abstracted a difficult and time-consuming matter. Appellant's abstract as it stands is in excess of seven hundred pages and we are inclined to believe that most of the deficiencies complained of arise from appellant's attempt at economy rather than any deliberate effort to mislead or withhold pertinent facts from this court. In addition appellees have elected to file an additional abstract covering all points raised in their motion. Under the circumstances, the motion is denied insofar as it relates to the alleged insufficiency of the abstract.
The further relief sought by appellees' motion, namely that the report of proceedings before Covelli be stricken from the record, raises the issue of whether the orders dismissing the original complaint were final and appealable orders. If so, appellant has not appealed from them within the time provided by law and the matters adduced before Covelli are not a competent part of the record to be considered on this appeal. To review briefly, it will be recalled that the original complaint named only Ehler and Austin as defendants, and that, after reference to and hearing by Covelli, Judge Prystalski sustained exceptions to the master's report on the sole ground that the Kraetsch heirs were necessary parties to the suit, and ordered appellant to file an amended complaint. Appellant did not file an amended complaint but added two additional counts to the original complaint, one of which charged ...