APPEAL from the Circuit Court of Kendall County; the Hon.
WILSON BURNELL, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This action was brought by the plaintiff, Ann M. Robinson, to obtain a dissolution of marriage from Wylie Robinson, and against his parents, Earl J. and Alice M. Robinson, to establish her rights in certain property owned by them, known as the Johnson Road property. As the principal parties of this action have the same surnames, to save time and space we will refer to them usually by their given names.
The novel question presented by this appeal is whether one who improves real property which she knows to be owned by others, who neither request nor encourage the improvement but merely give their permission for the improvement, is entitled to restitution. There are nine other issues presented by this appeal.
The trial on the dissolution issues was on a bifurcated basis with the grounds being tried first. The court found Ann proved grounds for dissolution without contest by Wylie. Thereafter, the other dissolution issues were set for hearing along with five counts in which Ann alleged an interest in the real estate owned by Earl and Alice. Prior to trial, Wylie moved for a change of venue, and Earl and Alice moved for a severance from the dissolution action and for a change of venue. Those motions were denied.
After hearing all of the evidence, the able and experienced trial judge made a finding that all issues of credibility are found against Earl and Wylie, based upon the many inconsistencies in their testimony. The trial court entered judgment for dissolution of marriage finding that both husband and wife are self-supporting, in good health, and have sufficient income and assets that neither was entitled to maintenance. The trial court gave custody of the two minor children to Ann and required Wylie to pay child support, and found that he was then $980 in arrearage. The trial court determined that Wylie's Teacher's Retirement Pension Fund was a marital asset and awarded Ann one-half of its current value and also awarded Ann $3,000 in legal fees. The judgment also assigned to the parties various items of furniture, furnishings, other personal property, automobiles, bank accounts and insurance policies.
The judgment further determined that Ann and Wylie each had a one-half interest in the house constructed on the land owned by Earl and Alice and known as the Johnson Road property. The court valued the house and improvements at $71,000 and determined that there was a construction loan for the house amounting to $15,000 and that the value of the lot upon which the house was constructed was $12,000.
The judgment went on to provide for the disposition of the Johnson Road property by two alternate methods to be determined by the election of Earl and Alice. The first method was that the house and lot be sold, sale expenses be paid, the construction loan be paid, then Earl and Alice be paid the value of the land and the remaining sale proceeds be divided between Ann and Wylie. A lien was imposed on Wylie's one-half in favor of Ann in an amount equal to the court's determination of the amount owed for her child support arrearages, attorney's fees and her one-half interest in Wylie's Teacher's Retirement Pension Fund.
Alternatively, the judgment provided that if Earl and Alice do not elect to have the house and lot sold then they are to pay Ann $28,000 representing her one-half interest in the house, and pay the bank $7,500 representing one-half of the amount due on the construction loan and, further, Wylie was required to hold Ann harmless and indemnify her as to any liability on the other $7,500 due on that loan. This alternative also provided that Ann would have a lien on Wylie's one-half interest in the house in the amount he was required to pay her for child-support arrearages, attorney's fees and one-half of the teacher's retirement fund. Upon receipt of the above-described funds, Ann was to quitclaim her interest in the property to Earl and Alice. They, however, rejected both alternatives. The trial court appointed a receiver for the property, but the receiver declined appointment.
All of the parties then took this appeal.
To determine the principal issues in this case, it is necessary to recite the facts in some detail to determine the relationship of the parties and the rights and obligations flowing therefrom.
Wylie grew up on a farm in Kendall County. He is the only child of Earl and Alice. They owned the farm upon which they lived and, in addition, owned another farm of 160 acres some five miles away known as the Johnson Road property, which is the focus of the controversy here.
Wylie and Ann were married in 1966. Ann was a registered nurse and Wylie was attending college and graduated in 1968. Soon thereafter they moved to Aurora where Ann worked as a nurse and Wylie was employed as a school teacher. They lived off of Wylie's salary and saved Ann's salary to build a home. Wylie wanted to move back to the country.
Early in the spring of 1969, Wylie had a conversation with his father, Earl, in which Wylie asked his father if he and Ann could build their home on the Johnson Road property. Earl agreed. Earl told his wife, Alice, that Wylie had asked if he and Ann could build their home on the Johnson Road property. Earl told Alice that he was agreeable, and Alice also consented. Wylie told Ann that his father had agreed to let them build their home on the Johnson Road property. Earl and Alice were pleased because Wylie would be more available to help them with work on the farm.
Wylie testified he selected the site for the house. Earl advised him that down at the end of the lane near Johnson Road was an appropriate place to build. Wylie drew the plans for the house. He surveyed and staked out the site. A registered land surveyor testified that the landscaped site upon which the house is built is exactly one acre, although Wylie testified he did not stake out any particular size site.
Wylie and Ann had saved $4,000. They borrowed $18,000 from the local bank as a construction loan and told the president of the bank that when they completed the home that the land would be theirs and a regular mortgage would be placed on the property for purposes of security. The note was renewed on a yearly basis, and monthly payments reduced the debt to $15,000.
Wylie and Ann began construction of the house in the spring of 1969 and occupied it in 1970. The construction work was done mainly by Wylie with substantial help from friends and family including Earl, Alice and Ann's father. Ann sanded and finished woodwork and cabinets. After the home was occupied, additional improvements in the amount of $5,000 were made. These included carpeting, drapes, kitchen cabinets, linoleum and paint.
All of the parties knew that the house was Wylie's and Ann's home and treated it as such. They did all of the landscaping and planted shrubbery. They repaired it and maintained it. They made all of the loan payments and treated the interest thereon as a deduction on tax returns. They insured the house with a homeowner's policy. They had the only keys to the house and never paid or were asked for rent on it. The one connection Earl and Alice had with the house was that it was included on the farm tax bill since the lot was not subdivided. Earl and Alice paid the real estate tax bill. In exchange for that payment, Wylie worked additional time for his parents on their farm.
The bank president drove to the property and inquired if the house was completed so that Wylie and Ann could obtain a conventional mortgage. Wylie, thereafter, obtained an estimate of the cost of a survey which was several hundred dollars. He and Ann did not have those funds, and the matter was dropped.
There was no written agreement between the young and older Robinsons as to a transfer of title to the property. However, Wylie and his parents had many oral dealings over the years. They were very close. Wylie borrowed money from his parents by oral agreement. He not only had access to his parents' checkbook, but the right to sign checks. He could charge items to his parents' accounts and then repay them. The younger Robinsons and the older Robinsons exchanged services and assistance in the old-fashioned country manner. Wylie worked for his parents on their farm each year and received a share of the farm income. Over the years he contributed a substantial amount of his time and knowledge to the construction of various farm improvements on his parents' farm.
Marital discord arose in 1977 and Wylie moved to his parents' home where he resided at the time of the hearing. From the relationship of the parties it can thus be seen that the younger Robinsons would have every expectation of eventual ownership of the home they constructed. However, the testimony was in strong disagreement on this point.
Ann testified that she and Wylie had conversations with Earl and Alice with respect to transferring the lot to her and Wylie. She said the matter was discussed in general terms on more than one occasion. According to Ann, it was made understood to Wylie and her that the house was sitting on property that would be theirs. She testified that Earl said they would sign it over to them.
Wylie testified that his father did not promise to transfer the house or sell it to him. His mother never promised anything, and neither parent ever said he would inherit all their property. Wylie acknowledged that the agreement was that he could live in the house.
Earl testified that he never had a conversation with Wylie and Ann about transferring the property to them. He never promised to transfer title or give Wylie the property, and he never told Wylie he was going to leave him the property by will or inheritance.
Alice testified that her husband gave Wylie and Ann permission to build a building, but that there were no representations that they were going to transfer an interest in the property to the younger Robinsons.
The trial judge put the following questions to Earl:
"Q All right. Mr. Robinson, when you allowed Ann and Wylie to put this $23,000 in the house, did you think they were making a gift to you of $23,000?
Q What did you think they were doing with ...