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Schiller v. Kucaba

DECEMBER 29, 1964.

AGNES H. SCHILLER, PLAINTIFF-APPELLANT,

v.

ANTON

v.

KUCABA, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS J. KLUCZYNSKI, Judge, presiding. Decree affirmed.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

This is an action for the partition of two vacant parcels of real estate brought by the plaintiff as the nominee of nine persons claiming to be co-tenants to a nine-tenths interest in the lots.

Defendants maintained that they were always the owners of the lots for the reason that they and their ancestor had acquired title to the lots by adverse possession; they also filed a complaint to quiet title to the lots in themselves.

The lots in question are situated at the southeast corner of 49th Avenue and 25th Street in Cicero, Illinois, and are legally described as:

Lots 33 and 34 in Benjamin F. Stauffer's Addition to Morton Park, said addition being a subdivision of the South Half of the Southeast Quarter of the Northeast Quarter of Section 28, Township 39 North, Range 13 East of the Third Principal Meridian, in Cook County, Illinois, save and except that part of Lot 34 lying Northwesterly of a line drawn from a point on the West line of said Lot 34, 21 feet South of the Northwest corner thereof and extending Northeasterly to the Northeast corner of said Lot 34, condemned for street purposes on a petition of the Department of Public Works and Buildings of the State of Illinois filed October 16, 1958 in the Superior Court of Cook County, Illinois, as Case No. 58 S 16386.

Lots 33 and 34 were purchased in 1907 by Anton Kucaba, Jr., the father of the defendants in this action. Anton, Jr., conveyed the lots to his parents, Anton and Jozefa Kucaba, Sr., in 1911, and they reconveyed them to Anton, Jr., and his wife, Bertha, in 1921. On October 4, 1922 Anton, Jr., and his wife reconveyed the lots to Anton, Sr., and his wife, along with other parcels of realty; this deed was recorded on January 23, 1923 in the Cook County Recorder's Office. It is under this last named deed that plaintiff's grantors claim their interest, since no deed subsequent thereto reconveying the lots back to Anton, Jr., and his wife has been located. All of the realty involved in the October 4, 1922 deed, except Lots 33 and 34, was subsequently conveyed to third parties by Anton, Sr., and his wife; Anton, Jr., notarized the signatures of his parents on some of these subsequent conveyances.

In 1936, Anton, Sr., was declared incompetent and letters of conservatorship issued to Anton, Jr., and his brother, Edward. Their coconservatorship was terminated upon the intestate death of Anton, Sr., in 1939, and they turned over all of the assets of the incompetent's estate to the trust company appointed as administrator of the estate of Anton, Sr., deceased. Lots 33 and 34 were not inventoried as assets of the incompetent's estate nor of the decedent's estate. Anton, Sr., was predeceased by his wife, Jozefa, and left as heirs his children: Anton, Jr., Marie, Josephine, Barbara, Julia, Joseph, Jennie, Cecelia, Edward and Rose. With the exception of the heirs of Anton, Jr., who are the defendants herein, plaintiff has received deeds from all of the heirs of Anton, Sr., or their heirs or legal representatives.

Anton, Jr., died intestate in 1948, having been predeceased by his wife, Bertha. He left as heirs his children: Anton V., Marion, Edna, and Edith. Beginning in December of 1931 and through January of 1955, there were five conveyances of Lots 33 and 34, among other realty, involving Anton, Jr., and his four children, all of which deeds were recorded in the Cook County Recorder's Office and all of which conveyances except the final one in 1955 were by warranty deed. The final deed in January of 1955 allegedly resulted in title to Lots 33 and 34 in defendant, Edith Kucaba.

Subsequent to the conveyance of October 4, 1922, Anton, Jr., and his wife, the grantors, remained in possession of Lots 33 and 34, which are located immediately adjacent to the house in which Anton, Jr., and his family lived and which is now occupied by Edith Kucaba as her home. From 1923 through 1931 Anton, Jr., paid the general real estate taxes on the lots, as well as installments and supplemental installments on two special assessments from 1924 through 1931. The names on these various tax bills appeared as "A. Kucaba," "Anton Kucaba," or "Anton Kucaba, Jr.," but all were addressed to the office of Anton, Jr., at 4901 West 25th Street, located directly across the street from his home and Lots 33 and 34. The receipted tax bills included other real estate owned by Anton, Jr., including his home and office realty, and were in his possession at the time of his death, as was the October 4, 1922 deed.

From October 4, 1922, until the death of his wife in 1939, Anton, Jr., and his wife used and maintained Lots 33 and 34. The lots were used variously as a chicken yard, vegetable and flower gardens, and rock and lawn gardens. The fence and hedges surrounding the property were maintained by the Anton, Jr., family. Toward the rear of the lots was a shed which was used as a garage by Anton, Jr., for one of his automobiles, until the shed was torn down in 1924 or 1926. After the death of his wife, and until his death in 1948, Anton, Jr., and his children, the defendants, used and maintained the lots in essentially the same manner as before. The use and maintenance was continued by Edith Kucaba and Anton V. Kucaba after the death of their father, Anton, Jr.

During the lifetimes of Anton, Sr., and his wife, no demand was ever made by them upon Anton, Jr., for possession of the lots. No suit for breach of warranty was ever instituted, nor any legal action entered concerning the bay addition to Anton, Jr.'s home, which bay was constructed in 1921 and which extended some three feet over Lot 33. Anton, Sr., and his wife never maintained, contributed to or supervised the premises, never demanded any rent for their use, nor inquired about or paid any taxes or assessments on the lots. Anton, Sr., and his wife resided one block distant from the lots, and visited in the home of Anton, Jr., and in the garden on the lots, for personal and business purposes. Anton, Sr., and Anton, Jr., also had general real estate and insurance business transactions, and for a time Anton, Jr., was a building contractor and builder.

Since the death of Anton, Sr., in 1939, some of the aunts and uncles of the defendants (plaintiff's grantors or their ancestors) came upon the premises to visit with Anton, Jr., and his wife. They never consulted with Anton, Jr., concerning improvements on the lots, never demanded rent, never instituted legal action for possession, and never inquired about or paid the taxes on the property. Many of these aunts and uncles lived in the immediate vicinity of Lots 33 and 34, some within one block and some on the same block.

Caroline Cherwonick was one of the witnesses for the defendants. She was born in 1909 and lived across the alley from defendants and their parents, Anton, Jr., and his wife. She testified that as a child she played with the Kucaba children on Lots 33 and 34; that Lots 33 and 34 and the lot on which the Kucaba, Jr., family home is situated were all treated as a single unit and always fenced as a single unit; that she never saw Anton, Sr., or his wife on the premises, except as visitors; that neither Anton, Sr., nor his wife ever maintained the garden or lawn and that the only one who did attend to such things was the wife of Anton, Jr., and that Edith Kucaba carried on this practice after her mother's death; that she, the witness, never saw the aunts or uncles of defendants maintain the property or repair the fence, nor had they done so to her knowledge; and that the only ones who cared for the lots or maintained the fence were Anton, Jr., his wife and Edith Kucaba.

It was stipulated that if Edward Stepek was called as a witness he would corroborate the testimony of Caroline Cherwonick, and that in addition thereto, he would testify that he was told by Anton, Jr., and his wife that they were the owners of the house and Lots 33 and 34. It was further stipulated that if Mildred Seleny and Earl Zentz were called as ...


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