Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Decree affirmed.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 1, 1967.
The plaintiff, Ernest J. Svenson, brought this proceeding in equity to enforce his averred right to a Trustee's Deed from the corporate defendant to a 85/100ths interest in a land trust, and Gust J. Peterson, by way of counterclaim, sought to enforce his opposing right to a 30/100ths interest in the trust. The chancellor found in favor of Peterson and Svenson has appealed.
During the years 1941 through 1948 inclusive, the plaintiff and the defendant, Gust J. Peterson, were employed by John S. Barnes Company in Rockford, Illinois. Plaintiff had been appointed to the management committee of the company and was to receive the sum of $3,000 each year for his services, but because he was absent for extended periods of time in connection with certain litigation, it was arranged that Peterson would replace him on the committee and would receive the same amount of money.
The plaintiff testified that his agreement allowed Peterson to retain the proceeds of the check for the year 1941 but that they were to share equally in the total of all checks, with Peterson paying income tax on the whole amount and Svenson reimbursing him for the tax paid on the portion received by him. On the other hand, Peterson testified that it was not until he received the check for the year 1942 that Svenson informed him that they were to share it in equal portions and pay taxes in the manner he described.
The check for the year 1942 was deposited in the parties' joint checking account in the First National Bank of Chicago, the checks for the years 1943 and 1944 were not deposited but Peterson testified, and Svenson denied, that they were negotiated and the proceeds shared equally, and the 1945 check was deposited in the joint account.
In November, 1945, Svenson and Peterson, together with Carl A. Palmgren and G. Adolph Markuson, executed a land trust agreement with the defendant, American National Bank and Trust Co., in which it was stipulated that the beneficial interests of the parties in the trust were:
Ernest J. Svenson 55% Gust J. Peterson 15% G. Adolph Markuson 15% Carl A. Palmgren 15%
Among other things, the trust agreement provided that:
"No assignment or other instrument conveying the interest of any beneficiary hereunder shall be binding on the Trustee in any manner until the original or an executed duplicate copy of such assignment or other instrument is deposited with the Trustee."
During the period the joint checking account existed, Peterson wrote the following checks:
January 1944 to Peterson $1,800.00 March 1945 to Peterson 200.00 March 1946 to Svenson 2,000.00 March 1946 to Palmgren 1,531.81 March 1946 to Peterson 468.19 _________ $6,000.00
Although Svenson testified that he directed Peterson in March of 1946 to write the check to Palmgren for the purchase by Svenson of Palmgren's interest in the trust, no assignment of Palmgren's interest apparently was requested at that time. On May 14, 1947, American wrote to Svenson saying that it had learned that Svenson had purchased the interests of Markuson and Palmgren and requested that the necessary assignments be filed with it.
As a result, on May 17, 1947, Svenson sent an assignment form to Markuson, which was executed and returned bearing the date of May 15, 1947, but acknowledged of June 6, 1947. Palmgren testified that on December 8, 1949, he was summoned to the office of American and, at the request of its president, executed what later proved to be an assignment of his interest to Svenson. Finally, on March 18, 1954, an assignment of Palmgren's ...