APPEAL from the Circuit Court of McLean County; the Hon.
WILLIAM C. RADLIFF, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 19, 1951.
This is an appeal from a decree of the circuit court of McLean County reforming a deed made November 23, 1937, by Belle S. Boyce to appellants Blanche Boyce Meyers and Bernice Boyce Greene.
On November 23, 1937, Belle S. Boyce owned the east 59 feet of lots 8 and 9, block 27, Allin, Gridley and Prickett's Addition to the city of Bloomington, which will hereinafter be referred to as the house tract. She also owned an undivided one-half interest in an adjoining piece of property, which will hereinafter be referred to as the barn tract. The other one-half interest in the barn tract was owned by Blanche Boyce Meyers and Bernice Boyce Greene who were nieces of Belle Boyce. The house tract was improved with a dwelling house and the barn tract with a large brick building used as a garage.
It appears that the parents of the nieces died when the nieces were quite young and that they then went to live with their aunt, Belle Boyce, who reared them.
On November 23, 1937, while she was ill and confined to a hospital, Belle Boyce executed a deed conveying both the house and barn tracts to her two nieces for a recited consideration of one dollar and other valuable considerations. At the same time she executed a will making several specific bequests and leaving all of the remainder of her property to the nieces. Both the deed and will were prepared by Homer English, an attorney, who for some thirty years had been her legal adviser. The deed reserved a life estate to the grantor and was placed of record the following day.
Belle Boyce recovered from her illness and on May 26, 1939, entered into a contract with appellees whereby she sold the house tract to them for $3500, payable in monthly installments, with privilege to pay the entire balance of the purchase price at any time. The record discloses that this was the approximate fair market value of the premises at that time. Homer English, who had prepared the will and the deed to the nieces some 16 months previous, also prepared this contract for Miss Boyce. Appellees paid monthly installments until on or about March 15, 1946. At that time there was a balance due Belle Boyce under the contract in the amount of $2087.97 which was paid in full by appellees. Belle Boyce was staying in Washington with one of her nieces at that time and the final payment was sent to her and she executed a warranty deed to appellees, covering the house tract, which was delivered and recorded on March 20, 1946. About two years later appellees discovered the 1937 deed to the nieces and immediately requested them to execute quitclaim deeds to the house tract. This they refused to do, and on October 16, 1948, appellees filed their complaint in the circuit court against Belle S. Boyce, Blanche Boyce Meyers and William J. Meyers, her husband, and Bernice Boyce Greene and Raymond Greene, her husband.
The first count of the complaint charged a breach of the covenant of warranty in the deed of March 15, 1946, to appellees and demanded judgment against Belle Boyce for damages.
The second count alleged that there was no consideration for the 1937 deed to the nieces and charged that the nieces and their husbands had knowledge of the fact that appellees were purchasing this tract in fee simple absolute under their contract dated March 26, 1939, and by reason of such knowledge participated in a fraud against appellees and demanded judgment that the 1937 deed be cancelled.
The third count charged a conspiracy between Belle Boyce and the nieces to defraud appellees and demanded that the deed of 1937 be rescinded, or in the event there was no rescission that appellees have a money judgment against the defendants.
On November 15, 1948, Belle S. Boyce, by Homer English, her attorney, filed an answer to the complaint admitting execution of the deeds, but denying any breach of warranty or fraud, and stating that at the time of the execution of the 1937 deed she had intended to convey to the nieces only her undivided interest in the barn tract, and that the house tract was included through an error of the scrivener, and stating that appellees were the owners in fee simple of the house tract. She also filed a counterclaim, in which appellees and the nieces and their husbands were made defendants, stating that on March 15, 1946, she was the owner in fee simple of the house tract and for a valuable consideration by warranty deed conveyed it to appellees, and that appellees went into possession; that prior to the conveyance to appellees, by arrangement with the nieces on November 23, 1937, she executed a deed to certain adjoining property; that through an error of the scrivener and a mistake of the parties thereto, said deed included the house tract and that it was the intention of the parties to convey to the nieces an undivided one-half interest in the barn tract only. She further alleged that she remained in possession of the house tract, claiming to own the same in fee, until she sold the same to appellees and that her deed to appellees was made with the knowledge and consent of the nieces. She asked that the deed of November 23, 1937, be reformed to exclude therefrom the house tract and that the nieces and their husbands be declared to have no interest therein.
On December 4, 1948, an answer was filed to the original complaint by attorney Shelton B. Leach, purportedly on behalf of Belle S. Boyce and on behalf of the nieces and their husbands. In their brief appellants argue that Homer English had no authority to represent Belle S. Boyce in this action; that the answer and counterclaim filed by him in her behalf are of no effect, and that she was in fact represented by Leach and no one else.
We have carefully examined the record and the evidence on this point. It appears that Homer English had been the attorney for Belle Boyce for thirty years. The nieces themselves testified that she never consulted with anyone except him and that she had implicit confidence in him. His right to represent her was not challenged by any pleading; he was consistently recognized by the lower court and by the master throughout this proceeding as the duly authorized attorney for Belle S. Boyce. Attorney Leach himself stated that he represented the two nieces and that while the nieces had a power of attorney from their aunt, he was personally not interested whether he represented Belle Boyce or not. The state of the record leaves no doubt that Homer English was duly authorized to represent Belle S. Boyce and did represent her in this proceeding up to the time of her death.
The answer filed by the nieces and their husbands to the original complaint was a general denial of the material allegations in each count and stated that they were the owners in fee simple of the house tract subject to the life estate of Belle S. Boyce and prayed that the complaint be dismissed. ...