APPEAL from the Circuit Court of Cook County; the Hon. ELMER
J. SCHNACKENBERG, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
The appellant, Louise Willis, filed her complaint in equity in the circuit court of Cook County on March 19, 1947, against the appellees, Robert Atkins and Susie Crawford Green. The complaint prayed that certain deeds creating a joint tenancy in real estate between appellant and Robert Atkins, herein referred to as the appellee, be set aside for fraud; that appellee be decreed to return to appellant certain money and personal property and that an accounting be had relative to a certain funeral business then conducted in the name of Atkins in which appellant claimed an interest. The complaint was later supplemented and amended. The defendant Susie Crawford Green did not appear or defend. Appellee Atkins by his answer and amended answer denied the fraud alleged in the complaint and set up as an affirmative defense that the property and funds had been transferred in consideration of an illegal promise of marriage made at a time when appellee was already married and known to be so by the appellant. His answer further alleged that the transfers were outright gifts without any conditions, terms or limitations, and that the appellant's action was barred by laches. The cause was referred to a master in chancery to take proofs and report findings. The master found that the appellee was guilty of the fraud charged in the complaint and recommended granting the relief prayed, except as to an accounting in the business. In that connection he found that the appellant had not established her claim by the greater weight of the evidence. Written objections to the master's report were heard and overruled. The objections were then ordered to stand as exceptions for hearing before the court. After a hearing, the court sustained the exceptions to the master's report and dismissed the appellant's suit for want of equity so far as the claim of fraud in connection with the execution of the deeds was concerned. The chancellor did find, however, that the appellee owed the appellant $1200 for money borrowed, and decreed the return of that amount with interest.
The decision of the court was entered on June 1, 1951, and on June 7, 1951, the appellant died. Thereafter an order was entered substituting her executor and the devisees and legatees under her will as parties appellant without changing the title of the cause. Because a freehold is involved the case is brought directly to this court, seeking a reversal of the decree of the circuit court. Since the title of the cause remains the same, we shall, in this opinion, refer to the appellant in the singular just as though Louise Willis were still living.
Counsel for the appellant lists nine errors relied upon for reversal but all may fairly be said to be covered by one contention: that the findings and decree are against the law and the evidence. We shall therefore turn our attention to the facts adduced at the hearing before the master.
The evidence for the appellant showed that the real estate in question is improved by a three-story brick building located at 4233 South Prairie Avenue in the city of Chicago. At the time of the trial there were fifteen rooms in this building, five in the basement, four on the first floor, four on the second floor and two on the third floor. Appellant had conducted a rooming house in this property for a number of years.
Prior to October 25, 1935, appellant and her husband, Virgil Willis, had owned this property in joint tenancy and had occupied it as their home. On the date last mentioned Virgil Willis died and appellant became the sole owner of the property. The appellee had been friendly with both Mr. and Mrs. Willis since the year 1932. He had been entertained in their home from time to time, including invitations to meals. At the time of Willis's death, appellee was employed by his brother who conducted a funeral home on Indiana Avenue in the city of Chicago. He was paid $12 per week for his services.
Shortly after the death of Willis, the appellee called at the home of the appellant and offered his assistance. He told her that she knew nothing of business and that he would handle her affairs for her. Appellant testified that she accepted appellee's proffered assistance; that she did counsel and advise with the appellee; that he paid her bills for her with money she furnished and cared for her affairs generally. During the fall and winter of 1935-1936, the appellee became very attentive to the appellant. He took her and her cousin, Rose Frazier, to church every Sunday and often escorted the appellant to clubs and other meetings. He visited the Willis home almost daily and took most of his meals there.
In the spring of 1936, according to Rose Frazier, who testified for the appellant, the appellee openly made love to the appellant in her presence. This included ardent displays of affection, such as hugging and kissing. Appellee, in his "enthusiasm," often carried the appellant about the house. He told appellant that she was a wonderful woman, deserving of the best in life, which he would provide for her when he became established and made his mark in the world. At this time he told her that he had nothing but that someday when he got some money they would be married. It was at this time that he first spoke of his ambition to have his own funeral business and he told Rose Frazier that he and the appellant were going to have a funeral business together. He explained to the witness that he was telling her this so that she would know that he was not trying to take advantage of the appellant.
In June of 1936, appellee first made a definite proposal of marriage. Appellant said that she would not marry anyone until her husband was dead a year. The appellee said he could wait, but about a week later he again broached the subject. He reminded appellant that he had asked her the week before to marry him and told her that he wanted her promise. Appellant testified that she consented to marry him; whereupon appellee told her that he had a confession to make; that he and his wife were separated but that he would have to get his divorce. Appellant expressed her surprise and the appellee asked her if she would help him get a divorce. She said that she would have to see about it. Later, the appellant gave him $50 towards the expenses of getting his divorce. The record shows that he obtained his divorce in the State of Mississippi in November of 1937.
In the fall of 1936, appellee asked the appellant several times to "put his name on her property." He told her that he was going to be a "big shot;" that he would make money and that when they were married he would do big things for her when they had a business of their own. He also spoke of trading the property in on a suitable funeral home when one was available.
These propositions culminated in a conversation in early December of 1936, which occurred in the presence of Rose Frazier. Appellant and appellee were in the living room of appellant's home. The appellee had again asked the appellant to put his name on her property telling her that it would give him prestige in business. She said that he should wait until they were married and he said that he would get the property anyway when that happened. He said, "My divorce will be her pretty soon and I am going to marry you." At this point Rose Frazier came in. According to her testimony, the appellee stated: "I want mama to put my name on her property. We're going to get married soon. That would give me prestige. I want to be a businessman. That would help me a lot." He further stated that he loved her; that he would treat her nice; that she would have a private car and a chauffeur; that he and his brother had been talking about establishing a business the other day; that she would have to do nothing but sit in the office and that if she had confidence in him she would do what he asked her to. Rose Frazier further testified that appellant at this point appealed to her for advice. Frazier told the appellant to wait; whereupon the appellant said, "We are going to be married soon. I just can't hardly resist him, I have so much confidence that I feel like doing everything he wants or asks."
According to the appellant, she then agreed to transfer the property. The appellee sent her to his lawyer where the deeds were prepared and executed on December 9, 1936. It is undisputed that appellee's sister, Susie Crawford Green, then Susie Crawford, was the intermediary grantee and the grantor in the deed setting up the joint tenancy between appellant and appellee.
After the transfer of the property the appellant continued to occupy it as before. The appellee came there almost daily and continued his protestations of love and repeatedly renewed his promises of marriage. The appellant served the appellee whatever meals he wanted without charge. The appellee entered a school to train as a mortician. The appellant gave him money towards his expenses. Appellant testified that she gave him money all the time. After the appellee's divorce in 1937, appellant often asked him to marry her but appellee demurred, saying he could not properly care for her until he finished his schooling and established a business. Sometime during the year 1939, the appellee began rooming in appellant's home as well as boarding there. For this he paid nothing. According to appellant his only contribution from 1935 to 1947 was the payment of a decorating bill amounting to $165 and the payment of about half of a bill for repairs to gutters on the house which totaled about $400. For a short time during 1942 the appellee conducted an ambulance business from the Willis house where a business telephone was installed. In the same year the appellee completed his schooling and received his license as a mortician.
Appellant testified that in 1943 appellee suggested that they move the business to Forty-seventh Street. He told her that a building was available there and that he needed about $600 and asked her to put that amount into the business. Appellant asked, "Where do I come in?" He told her that she would be a "silent partner" in the business and that half of it was hers. She reminded him that he had not kept his promise to marry her. He told her that he would marry her when the business was established and going good. She let him have the $600. According to the appellant, she ...