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Desiderato v. Sullivan

OPINION FILED MAY 27, 1980.

LOUIS J. DESIDERATO, PLAINTIFF-APPELLANT,

v.

JAMES SULLIVAN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This appeal involves a controversy over the ownership of the family residence. Louis Desiderato (plaintiff) brought suit against his brother James Desiderato, his sister Virginia Sullivan, and his brother-in-law James Sullivan (defendants) to impose a constructive trust on the residence. After trial, the circuit court found in favor of defendants. Plaintiff appeals.

Giuseppe and Angelina Desiderato emigrated to America from Sicily in about 1910. In 1925 they purchased a five-room, two-story bungalow, the property in dispute. There they raised their five children: Joseph, James, Carmella, Louis, and Virginia. Joseph married and left the house around 1930. Although he was served with summons, he did not appear in these proceedings. Carmella died in 1969.

The parties to this suit and their parents occupied the premises for most of their lives. Angelina and Giuseppe lived there until their deaths in 1966 and 1969, respectively. Plaintiff lived there from 1925 to 1975 except for six months. Defendant James Desiderato continued to live there following his years in high school and resides there at present. Virginia lived in the house from 1925 to 1937. Then she moved out and married defendant James Sullivan. Virginia moved back in the house from approximately 1943 to 1945 while her husband was in the service. She and her husband lived there for a short time after the war. They left but returned in 1953 to live there permanently. The Sullivans reside there at this time.

All adults who lived in the house worked to help pay the mortgage, taxes, and other expenses. Giuseppe worked for the phone company for 27 years. He retired in 1942. He subsisted thereafter on his pension and social security benefits and on family contributions. Angelina took in a very small amount of sewing until 1953.

Plaintiff spent a short time in high school. He was employed full time by General Motors for over 30 years. Virginia testified plaintiff suffered a nervous breakdown from 1944 to 1950 and was not employed full time then.

James Desiderato worked at various jobs since high school. This includes employment as a carpenter, musician, cab driver, mechanic, and shipping clerk.

Virginia graduated from high school and worked at a factory. From approximately 1934 to 1941, she worked as a legal secretary. In 1941 she took a job at General Motors and later worked at a law firm. She had a baby about 1944 and soon after worked on a part-time basis. She testified she then did not work until 1950. Since that time Virginia has worked at various office jobs.

The original price of the residence in 1925 was $8500 with a mortgage of $7500. In 1946 the parents placed an additional $5000 mortgage on the house. In 1948 they made another mortgage of $600. In 1949 they obtained a new $5000 mortgage. This consolidated the balances due on the two prior loans and resulted in monthly payments of approximately $50. Virginia testified money from two of these mortgages was used to help free plaintiff from jail. Plaintiff, however, testified he was not in jail. He stated his father gave him a loan of $900 from the 1949 mortgage proceeds and he repaid this loan.

After World War II, Virginia, her husband and their child lived in a veterans' housing complex. An arrangement was made whereby they would move in with the Desideratos. In 1953, Virginia, her husband, and the senior Desideratos took out a new mortgage loan for $12,500. The new mortgage paid the existing balance under the 1949 mortgage of $3400 and provided $9100 to construct an additional six rooms. There were four rooms on the second floor as an apartment for the Sullivans and two on the first floor for the rest of the family. This mortgage indebtedness was reflected in a monthly mortgage payment of $135. Each month the parents paid $50 of that payment until the $3400 was paid off, and the Sullivans (Virginia and her husband) paid $85 of it. From 1953 to 1956, Giuseppe handled the mortgage payments. In 1956 Virginia commenced to make the payments. She also began to collect the money and pay other bills relating to the house.

The Sullivans moved into the house in October 1953. Plaintiff testified he and his brother James continued to pay $25 to $30 a week for room and board from that date until 1969. Giuseppe paid $50 a month on the mortgage until it was paid off. The senior Desideratos paid half the real estate taxes, and the Sullivans paid the other half. Each of the two apartments had its own electric and gas meters.

On December 5, 1960, a conveyance was made which resulted in vesting title in the Sullivans as joint tenants with the senior Desideratos. Virginia testified Giuseppe asked her to call Anna Olson at the law firm of Boyle, Murphy and Nelson and to request the necessary papers which would allow the Sullivans' name to appear on the title. Virginia said, "I did not do it on my own." Giuseppe asked that the papers be brought over to the house to be signed. Virginia made the call in her father's presence. This law firm had previously made some of the mortgage loans to the family.

On that date Mr. Motto, an attorney associated with that firm, and Anna Olson, an employee who had assisted Giuseppe in arranging his previous mortgages, brought the necessary documents to the house. The documents conveyed Giuseppe and Angelina's title by quitclaim deed to Anna Olson. She then conveyed the property by quitclaim deed to Giuseppe, Angelina, Virginia, and her husband in joint tenancy. Virginia denied that at the time she knew the difference between joint tenancy and tenancy in common. There was no money consideration paid for executing the deeds.

Those present at the signing included Giuseppe, Angelina, Virginia, James Sullivan, Carmella, Anna Olson and Mr. Motto. Virginia testified James Desiderato was there, but his testimony on that fact is inconsistent. In his deposition he stated he was present; at trial he ...


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