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Parker v. Ter Bush





Appeal by defendant from the Circuit Court of Du Page county; the Hon. WIN G. KNOCH, Judge, presiding. Heard in this court at the May term, 1951. Decree affirmed. Opinion filed August 28, 1951. Rehearing denied October 2, 1951. Released for publication October 2, 1951.


Rehearing denied October 2, 1951

On September 21, 1938, the circuit court of Winnebago county rendered a decree in a divorce proceeding then pending in that court wherein Pauline Parker, now Pauline Wilson, a cousin of the defendant in the instant case, was the plaintiff and the plaintiff in the instant case was the defendant. That decree was rendered upon the complaint and answer of the defendant and in addition to awarding the plaintiff a divorce on the grounds of extreme and repeated cruelty awarded to the plaintiff the custody of the minor son of the parties, then three years of age.

This decree found that the defendant had agreed to pay and the plaintiff had agreed to accept "in full settlement and adjustment of their property interests and in consideration of the plaintiff's continued right to support, the sum of $750.00 and that in and by said agreement between the parties, no alimony should be paid by the defendant to the plaintiff for her own support and maintenance." The decree then ordered the defendant to pay to the plaintiff the sum of $750 in full discharge of all liability for alimony to be paid to the plaintiff for her own support and concluded: "And it appearing to the court that said sum of $750.00 has been paid to the plaintiff in open court, said decree is hereby declared to be satisfied and the defendant is discharged of all claims for alimony, support and maintenance of the plaintiff. . . . It is further ordered by the court that each of the parties hereto shall hold his or her property free and clear of any claim of the other that may have arisen or attached by virtue of the marital relation heretofore existing between the parties."

On June 26, 1941, the defendant in the instant proceeding filed her verified complaint for divorce in the circuit court of Du Page county alleging, among other things, that the parties thereto had entered into a property-settlement agreement and that the terms thereof are as follows:

"(a) That Charles Parker (the plaintiff in the instant proceeding) shall pay to Jean Parker, in lieu of alimony and in full settlement of his marital obligations, the sum of seven hundred fifty dollars; that said sum shall be paid as follows: $250.00 on the day the decree is entered. (The terms of payment of the balance is then set forth.)

"(b) That said Charles Parker shall pay the costs of said divorce proceedings, including solicitor's fees to Carl O. Bue, attorney for Jean Parker, in the amount of $150.00, said fees to be paid prior to the entry of the decree for divorce.

"(c) That said Jean Parker shall be entitled to all articles belonging to her such as: linens, dishes, bedspreads, silverware, draperies, curtains, kitchen set, set of pots and pans and flatiron."

To this complaint an answer was filed and on July 18, 1941, a decree was rendered granting the plaintiff therein, the defendant in the instant proceeding, a divorce from the plaintiff in the instant proceeding and finding, among other things, "that defendant has at the time hereof, paid plaintiff's attorney's fees, the court costs herein and has paid to plaintiff the sum of $250.00, all in accordance with the settlement agreement entered into between the parties hereto and more fully set forth in the complaint filed by plaintiff herein." Thereafter, the defendant acknowledged satisfaction of the decree, the payment to her of the several amounts and the receipt of the various articles of personal property.

On June 10, 1949, the instant verified complaint was filed by Charles H. Parker (defendant in the divorce proceeding) against his former wife, now Jean Ter Bush. The complaint, as amended, alleged, among other things, that the plaintiff was the owner of certain described land in Du Page county; that the parties hereto were married on June 17, 1939, and lived together as husband and wife until February 23, 1941, at which time they separated; that on June 26, 1941, the defendant filed her complaint for divorce and that a decree of divorce was thereafter granted; that subsequent to February 23, 1941, and prior to June 26, 1941, the parties entered into an oral property settlement, which agreement was negotiated by the plaintiff (in the instant suit) personally and without counsel and by the plaintiff in the divorce suit (the defendant in the instant proceeding) whereby plaintiff agreed to waive any alimony from said plaintiff and to release all rights of any kind whatsoever in and to any and all of the property then owned by the plaintiff; that the terms of said property-settlement agreement were made known to defendant and to the court during the hearing on the complaint for divorce, but through inadvertence the language decreeing that said defendant be barred of all rights of any kind (including dower) in or to the property of the plaintiff was omitted from the draft of the decree as prepared by counsel for defendant and was for this reason inadvertently omitted from the decree of divorce entered on July 18, 1941.

The complaint in the instant case then alleged that the complaint in the divorce proceeding recited that a property-settlement agreement had been entered into by the parties and set forth portions thereof and then alleged that the plaintiff herein had complied with the terms of said oral property settlement and that on October 1, 1945, a satisfaction of said decree executed by defendant was filed in the office of the circuit clerk of Du Page county. It is then alleged that the terms of said oral property agreement were just and advantageous to the plaintiff in view of the fact that he then owned an equitable title to the real estate described in the complaint upon which large sums of money were due and owing.

The complaint then charged that notwithstanding said oral property settlement, the defendant has asserted an inchoate right of dower in his described real estate, giving rise to an apparent cloud upon his title which has the effect of depreciating the value thereof and to prevent plaintiff from selling the same. The complaint prayed for a decree declaring defendant to have no right, title or interest of any kind by way of inchoate dower or otherwise in and to said premises.

The answer of the defendant admitted the rendition of the divorce decree and that plaintiff paid her the sum of $750 as provided therein but denied that any oral or written property-settlement or agreement was ever entered into or that she ever consented to abandon or surrender any right or rights which she may have had before or after the entry of the divorce decree in any real estate in which plaintiff had any legal or equitable interest. By her answer she insists she has an inchoate right of dower in all of said real estate owned by the plaintiff or to which he had a legal or equitable title at any time during his marriage to defendant and that her interest therein is a valid, binding and subsisting one. The issues thus made by the pleadings were referred to the master with directions to take the proofs of the respective parties and report his conclusions of law and fact to the court.

The master reported to the court the evidence and his findings recommending a decree be granted the plaintiff and that the defendant be required to release her dower interest in the premises described in the complaint. Objections to the master's findings were overruled by the master and, upon a hearing before the chancellor, the exceptions of the defendant to the master's report were likewise overruled, the report and conclusions of ...

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