Appeal from the Circuit Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Affirmed and remanded.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 27, 1966.
This is an action between two sisters to set aside a recorded deed to a lot which had been owned by their deceased father. Defendants appeal from a decree which declared a constructive trust in favor of plaintiff, as owner of an undivided one-third interest. Plaintiff cross-appeals, contending that she should have been adjudged owner of a one-half interest.
Plaintiff, Hortense Steiner, and defendant, Jane Lawson, her sister, were the children and sole heirs at law of Abe and Rose Weil. On January 17, 1934, Abe Weil and his wife Rose conveyed three parcels of real estate to Myron J. Rudd, who was the brother of Rose Weil, by quitclaim deeds recorded on January 19, 1934. Abe Weil died intestate shortly thereafter on March 13, 1934, and Rose died intestate on January 28, 1948. After the death of Abe Weil, Myron J. Rudd and his wife conveyed the three parcels to Jane G. Weil (now Lawson) by three separate deeds dated March 27, 1934. These deeds were recorded on various dates. The deed to the subject parcel, the southeast corner of 154th and Vine Street, Harvey, Illinois, was recorded on October 21, 1937. This is the deed plaintiff seeks to be "adjudged a nullity and be removed as a cloud on the title."
The complaint alleges that Rudd paid no consideration for the conveyance of the three parcels and took title "solely as nominee for Abe Weil, or in the event of the death of Abe Weil for the family of Abe Weil, as will appear by reference to the affidavit of said Myron J. Rudd, dated August 24, 1961." A copy of the affidavit is attached to the complaint and made a part thereof.
The amended answer of Jane Lawson admits that the quitclaim deed to her of the subject premises was dated March 27, 1934, and was recorded on October 21, 1937, and alleges there can be no recovery "under this supposed trust in view of the Statute of Frauds." It is further alleged that the subject premises "had been given to Jane Weil Lawson as a gift by Rose Weil, their mother, with the approval and instructions of Abe Weil, their father . . . as part of her dowry."
The matter was referred to a master in chancery. The master's report states:
"Myron Rudd [a witness for plaintiff] testified in a straightforward and credible manner that Abe Weil, the husband of Rudd's sister, Rose, came to him in 1934 and advised him that Weil had conveyed to Rudd three parcels of real estate which Weil wanted Rudd to hold for Weil's benefit and, in the event that something happened to Weil, then for the benefit of Weil's wife and children, that after Weil's death, Rudd found that holding the titles was a source of annoyance and requested his sister, Rose Weil, to arrange for the transfer of the properties from him, that Rose Weil brought to Rudd and his wife blank deed forms which Rudd and his wife signed without filling in the forms and without appearing before a notary public, which signed deed forms Rose Weil took with her.
"Two of the deeds in question, including one concerning the property involved in this cause, appear of record in the Office of the Recorder of Deeds of Cook County, are complete in form and bear certificates of acknowledgment made by a notary public whose authority as a notary public has not been questioned here, and show as grantee, Jane Gertrude Weil, now Jane Lawson, a defendant, without any limitation as to her interest.
"The foregoing testimony and evidence pose several questions as to the competency of the testimony of Myron Rudd, as follows:
"(1) Inasmuch as the deed to the subject property appears of record in the Office of the Recorder of Deeds of Cook County in completed forms and bears a certificate of acknowledgment before a notary public, and this constitutes prima facie evidence of the execution and delivery of the deed, may the execution thereof be impeached by the sole testimony of a grantor, in this case Myron Rudd, that the deed was signed in blank, even though the law is that a deed signed in blank is void?
"(A) . . . In our case we have only the testimony of Myron Rudd, a grantor, and his unsupported testimony cannot overcome the certificate of the notary public that the deed was executed and acknowledged. . . .
"(B) It follows, therefore, that I cannot consider Rudd's testimony as to the execution and acknowledgment of the deed which he and his wife signed, and since there is no other evidence on this point, I must conclude that the deed from the Rudds to Jane Gertrude Weil was duly executed, delivered and acknowledged.
"(2) Since I must conclude that the deed from the Rudds to Jane Weil was duly executed, delivered and acknowledged, is Myron Rudd's testimony, given almost 30 years after the deed, that he had taken title as a trustee acceptable?
"(A) The law is that a trustee having divested himself of title by an absolute conveyance cannot thereafter convert the grantee into a trustee, by his written or oral ...