APPEAL from the Superior Court of Cook County; the Hon. JOHN
A. SBARBARO, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 15, 1958.
This action was brought in the superior court of Cook County to compel specific performance of an alleged contract for the sale of real estate. The trial court sustained the plaintiff's motion for the entry of a summary decree. A freehold being involved, defendant appeals directly to this court and contends that plaintiff's cause of action is barred by the Statute of Frauds and that, in any event, a factual question was presented on the pleadings which precluded the entry of summary judgment.
It would prolong this opinion unduly to set forth fully the pleadings of the parties; however, a recitation of their essence is necessary to adjudication of the defendant's claim that the pleadings precluded the entry of summary judgment.
By his complaint, plaintiff alleged that the defendant was the owner of certain real estate; that there had been a verbal agreement between plaintiff and defendant that the real estate would be sold by defendant to plaintiff for $200, subject to outstanding real-estate taxes and a pending mortgage foreclosure. He further alleged that upon the making of this agreement, the plaintiff delivered his check for $200 in payment for said conveyance to an attorney "as Trustees for the parties." (Subsequent pleadings disclosed that this attorney was related to the defendant and had advised the defendant relative to the transaction.)
The complaint further states that the defendant accepted the check in full payment for the conveyance and executed a deed in conformity therewith, but that thereafter the defendant took the deed from the attorney "in trust" for the sole purpose of obtaining her husband's signature in waiver of dower. It was further alleged that shortly thereafter the defendant wrongfully tore her signature from the deed and returned the deed to her attorney with the check. Plaintiff prayed that the defendant be directed to perform specifically by execution of a quitclaim deed "free and clear of all encumbrances or liens (other than the taxes and said suit)"; that defendant's husband, also joined in the suit, be directed to join in the execution of that deed as waiver of inchoate dower; and for other general relief.
The next pleading was defendant's motion to dismiss the suit, predicated primarily upon the contentions that defendant's husband was not bound by the transaction and that the agreement was unenforceable by reason of the Statute of Frauds. The court sustained the motion as to defendant's husband, but denied it as to the defendant.
By her answer, the defendant denied that the attorney in question was acting as a trustee; admitted that the attorney had delivered to her a check for $200, but denied that she had agreed to accept the check in full payment for the real estate, and denied that she had in fact accepted the check. Rather, she alleged, the attorney delivered the check to her home, but that she voided the check by striking out portions thereof and returning it to the attorney for re-delivery to the plaintiff; and she further alleged that she had never delivered "to plaintiff or to any agent or attorney for plaintiff" any deed executed by her. She further denied that the plaintiff ever had possession of a deed executed by her.
The defendant admitted that she tore her signature from the alleged deed of conveyance and returned the deed in that condition to the attorney together with the check, and she further averred that neither the attorney nor any other person ever had possession of the deed during the time it bore her signature. The answer further pleaded the Statute of Frauds in bar of the plaintiff's action and prayed for dismissal of the suit.
The plaintiff replied, stating that the deed was duly executed by the defendant and delivered to the attorney for delivery by him to the plaintiff, and that at that time a check for $200 was delivered to and accepted by the defendant. Plaintiff further replied that after the delivery of the deed from defendant to the attorney, the attorney, without authorization, gave temporary custody of the deed to the defendant, for the sole purpose of obtaining her husband's signature in waiver of dower, and that the defendant verbally undertook to obtain such signature promptly and to return the deed. The reply avers, however, that the signature of the defendant's husband was and is unnecessary. By his reply, plaintiff further alleged that at the time of the alleged verbal agreement for sale, the defendant authorized the plaintiff to intervene in a suit then pending for strict foreclosure of a mortgage on the property, and that pursuant thereto the plaintiff's former attorney had expended considerable effort in that suit. In pursuance of this agreement, the reply alleges, the deed prepared for defendant's signature contained an express power of attorney authorizing such legal proceedings by the grantee as may be necessary to preserve the interest conveyed by the deed.
A copy of the deed is appended to the reply. The sole grantor therein designated is the defendant; her husband is not named. The instrument is an ordinary quitclaim deed, the sole unusual provision being the power of attorney hereinabove referred to.
The next step in the proceedings was the taking of the discovery deposition of the attorney who delivered the deed. Pursuant to subpoena, he produced the original deed with the signature line torn out, and stated that he did not know who performed the mutilation. He stated that he had obtained the deed from the plaintiff and showed it to the defendant, who examined and signed it. At the time she signed the deed, the attorney gave the defendant a check for $200 and directed her to mail the deed to his office when her husband had signed it. He further stated that he had not represented the defendant as her attorney "I acted purely as a relative without compensation." The attorney further testified that at the time the deed was signed, he told the defendant that the mortgage on the property had been foreclosed and that within a few days a deed would issue extinguishing the defendant's interest.
Defendant thereupon moved for summary judgment, appending to the motion her own affidavit and referring to the deposition of the attorney. The averments of the defendant's affidavit were these: The attorney, her brother-in-law, came to her home with his wife. The defendant was home alone. The attorney placed the check on the coffee table and handed her the quitclaim deed in question. At his request, she signed the deed, but did not return it to him. He left the deed and check with her. (The purpose of his so doing is not stated in the affidavit.)
Several days later, defendant averred, she placed both the check and the deed in an envelope and mailed it to the attorney. Before doing so, she tore the signature from the deed and cancelled the check by drawing lines through her name as payee. The check was not endorsed. At no time, she averred, had she delivered the deed to ...