After the change was made the grantor ex- [1, 2] We will not extend this opinion by pressed her satisfaction with it, and when referring to more authorities. In the cases she claimed the alteration invalidated the we have cited, and in the notes to some of deed the court denied her claim and sus- them, will be found many other cases upon tained the grantee's title, subject to the the subject. With few exceptions they are grantor's life estate. in harmony in holding that when title has vested in the grantee by the delivery of the deed he cannot divest himself of the title and vest it in another grantee, or re-vest it in the grantor, by an alteration or destruction of the deed. "When a person has become the legal owner of real estate, he cannot transfer it or part with his title, except in some of the forms prescribed by law. The grantee may destroy his deed, but not his estate. He may deprive himself of his remedies upon the covenants, but not his right to hold the property. This distinction has existed from the earliest times." Clark v. Creswell, supra. Stiles v. Probst, 69 Ill. 382, was the foreclosure of a mortgage. The mortgage was made and delivered in January, 1862. As written it contained the name of the mortgagor's wife as joint mortgagor with her husband and release of her dower in the land but was not executed by her. In July, 1871, she signed and acknowledged the mortgage. The mortgagors contended the mortgage having been executed and delivered by the husband without his wife having signed it became inoperative and that there could be no second delivery. The court said the proof showed it was the intention of the parties from the first that the mortgage should be executed by the wife, and the husband retained the possession of it for that purpose; that it was not considered by the parties complete until the wife had executed it. The mortgage was held to be a valid conveyance by husband and wife. Adding the word "Junior" to the name of a grantee, solely for the purpose of identifying him as the real grantee, does not affect the validity of the title (Coit v. Starkweather, 8 Conn. 289), and the erasure of the Christian name by which the grantee is de scribed and the insertion of his true name will not affect the deed. Such changes are regarded as not material. The decree of the superior court is reversed, and the case remanded, with directions to dismiss the cross-bill for want of equity, and grant the relief prayed in the original bill. Reversed and remanded, with directions. (317 Ill. 247) (No. 16567.) SOLTYSIK v. SOLTYSIK. 1. Appeal and error 959(1)-Equity abuse of discretion is shown. In Gibbs v. Potter, 166 Ind. 471, 77 N. E. The allowance of amendments in a chancery 942, 9 Ann. Cas. 481, the court had under suit is largely within discretion of trial court, consideration the effect of altering a deed and a court of review will not reverse for reby erasing the name of the grantee and sub-fusal to allow an amendment unless manifest stituting the name of another with the consent of the original grantee, the grantor, and the notary public before whom the deed was originally acknowledged. The court held the alteration was ineffective, and said: "It is well settled that the alteration or de struction of a deed subsequent to its full execution, although done by consent of the parties, will not divest the original grantee of title, or re-vest such title in the grantors"-citing many authorities. 2. Divorce 104 - Denial of amendment changing nature of action not abuse of discretion, where motion therefor first made after decision on merits. plaint and change its prayer from that for di Denial of motion to amend a bill of com vorce to separate maintenance held not erroneous, where motion was not made until after chancellor had announced his decision on mer its of case. 3. Equity~39(1)-Court of equity will retain case to do complete justice, where jurisdiction acquired. Where a court of equity has acquired equitable jurisdiction, it will retain case to do complete justice between parties. In Clark v. Creswell, 112 Md. 339, 76 A. 579, 21 Ann. Cas. 338, a mother bought land, paid the purchase price therefor and had the deed made to her daughter. The deed was delivered to the mother. Before it was recorded the mother had the grantor insert the name of the daughter's husband also as a grantee. The deed was afterwards recorded. The court held the alteration was ineffectual to divest the original grantee of In settling property rights and decreeing title conveyed to her by the deed or vest any alimony in divorce cases, first question for coninterest in the grantee whose name was in-sideration is equitable rights of parties in propserted as a grantee. erty held and owned by them. 4. Divorce 240(2), 252—Equitable rights of parties to divorce suit first question for determination in settling property rights and decreeing alimony. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) 5. Divorce 252- Real estate acquired by joint efforts of husband and wife, and purchased with common funds, properly divided equally between them. In divorce suit involving settlement of property rights, where evidence showed that both parties after their marriage worked and contributed materially to funds with which property was purchased, and no books of account were kept, but earnings of each went into common fund, held that chancellor properly decreed that each party should have one-half interest in real estate. 6. Divorce 253-Wife collecting rents from property owned jointly by her and husband and applying them to taxes, repairs, etc., not required to account to husband for one-half thereof prior to decree of division. Where husband deserted his home, and thereafter wife collected rent from a flat building which had been acquired by joint efforts and common funds of both, which rent was largely devoted to making repairs, payment of taxes and mortgage indebtedness, and support and maintenance of wife and minor children, no books of account being kept, held that wife will not be required to account to husband for onehalf of such, rents prior to date of rendition of decree granting wife divorce and giving each one-half interest in such property, especially where husband's cross-bill did not pray such relief. titled to an undivided one-half interest therein. The cause was heard by the court, and a decree entered dissolving the marriage, giving to appellant the care, custody, and control of the three minor children, and ordering appellee to pay appellant the sum of $45 a month as alimony for the maintenance and support of the minor children. The decree also found that the real estate in question was acquired by the joint efforts of both of the parties and purchased with the funds of both of them, and ordered appellant to execute and deliver immediately a quitclaim deed to one-half of the premises, and, in the event she should fail or refuse to execute the deed, that a master in chancery of the court execute the deed in her name and deliver the same to appellee. The decree further provided that appellant should account to appellee for one-half of the income from the real estate from the 1st day of January, 1923, to the date of the entry of the decree. From this decree appellant has perfected an appeal to this court. [1, 2] After the decision of the case by the court, and before the entry of the decree, appellant moved the court for leave to amend the bill of complaint and change its prayer from that for divorce to separate maintenance, which motion was by the court denied, and it is contended by appellant that Appeal from Circuit Court, Cook County; the court erred in so doing. While courts George Fred Rush, Judge. Bill for divorce by Valeria Soltysik against Kasimir Soltysik, in which defendant filed a cross-bill. From the decree, complainant appeals. Affirmed in part, and reversed in part and remanded, with directions. lee. Jacob Levy, of Chicago, for appellant. HEARD, J. January 26, 1923, appellant filed a bill for divorce in the circuit court of Cook county against appellee, charging him with habitual drunkenness for the space of two years and upwards, and extreme and repeated cruelty. The bill also alleged that she was the owner of two improved lots in the city of Chicago in which appellee had an inchoate right of dower, and prayed for the dissolution of the marriage, the custody of their three minor children, and that appellee be directed to convey all of his interest, including dower, in said real estate to appellant. Appellee filed an answer and a crossbill, in which he denied the allegations of habitual drunkenness and extreme and repeated cruelty and made counter allegations of cruelty against appellant. The cross-bill alleged that the real estate in question was purchased by money earned by him, and that the title was taken in the name of appellant at her request, and alleged that he was en should always be liberal in their allowance of amendments, to the end that justice may be done, the allowance of amendments in a chancery suit is largely within the discretion of the trial court, and a court of review will not reverse for refusal to allow an amendment, unless a manifest abuse of such discretion is shown. Hoerrmann v. Wabash Railway Co., 309 Ill. 524, 141 N. E. 289; Walker v. Struthers, 273 Ill. 387, 112 N. E. 961. The motion to amend and change the action from divorce to separate maintenance was not made until after the chancellor had announced his decision on the merits of the case, and its denial was not a manifest abuse of the discretion vested in the court. Where there is any [3-5] It is contended by appellant that appellee, having failed respecting the grounds alleged for divorce, the court was without jurisdiction, upon his cross-bill, to enter a decree dividing the real estate between the husband and the wife and requiring the wife to account for rent. ground of equity jurisdiction, a court of equity having acquired equitable jurisdiction to grant equitable relief will retain the case to do complete justice between the parties. Baker v. Salzenstein, 314 Ill. 226, 145 N. E. 355. In divorce cases, in settling property rights and decreeing alimony, the first question for consideration is the equitable rights of the parties in the property held and owned by them. If there is property held For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Process 149-Defendant's uncorroborated testimony, together with officer's failure to remember service, held insufficient to impeach return. by one of them which has been accumulated | cial oath, will not be set aside merely on unby the joint efforts of the two or by the corroborated testimony of person on whom profunds of both, then such property should be cess has been served, but only on clear and divided according to such equity as exists satisfactory evidence. between them. While in the present case each of the parties claims that the property in question was purchased by their individual funds, yet the evidence shows that both parties after their marriage worked and contributed materially to the funds with which the property was purchased. No books of account were kept, but the earnings of each went into a common fund, which was used for the support of the family and in making payments for the real estate. The chancellor saw and heard the witnesses, and we are not disposed to set aside his decree giving to each of the parties a one-half interest in the premises. [6] The evidence shows that on January 1, 1923, appellee deserted his home, and that thereafter appellant collected the rent from the premises, which were a flat building, in which appellant and her children continued to reside. The rents were largely devoted to the making of repairs, the payment of taxes, payments upon a mortgage indebtedness, and the support and maintenance of appellant and the three minor children. No books of account were kept by either party, and appellant has no means of making an itemized account of her receipts and expenditures. Under the particular circumstances of this case, we are of the opinion that it would be inequitable to require her to account to ap pellee for one-half of the rents prior to the date of the rendition of the decree, especially as appellee did not pray for such accounting in his cross-bill, but that she should account to him for one-half of the rents from the time of the entry of the decree. The decree of the circuit court is affirmed in part, and reversed in part, and remanded to the circuit court of Cook county, with directions to modify the decree with reference to the accounting for rents in accordance with the views herein expressed. Reversed in part and remanded. 1. Judgment 419-Relief granted to person injured by false return. Where sheriff or other officer has made a false return, relief may be granted to person injured thereby by a court of equity or law, according to the circumstances. 2. Process Defendant's uncorroborated testimony that summons was not served on him, and failure of officer making return to remember service, held not such clear and satisfactory proof that serv ice was not made as to impeach return. In bill praying for vacation of judgment and granting of new trial on ground that summons ten by attorneys of defendant to complainant, was never served on complainant, letters writnotifying complainant of defendant's intention to bring suit, were not competent evidence, as they had no tendency to prove service of summons; but their admission was harmless, where decree denying complainant relief was sustained by evidence without them. 5. Appeal and error 1052(8) — Judgment 461 (2) - Evidence as to whether complainant, seeking to have judgment set aside, had a defense, competent, but immaterial, where complainant not entitled to relief because served with summons. In bill praying for vacation of judgment and new trial on ground that summons was never served, interview of defendant's father with complainant as to latter's admissions was competent on question of complainant's defense, but could not affect decree denying him relief, on ground that summons had been properly served. DUNN, J. On October 16, 1920, Bernice Cusack, an infant of the age of four years, by her father as her next friend, brought an action on the case for $10,000 damages to the 157-Return set aside only on November term of the superior court of Cook clear and satisfactory evidence. county against Anton Marnik.. A declaraThe return of an officer, made in due course tion was filed, counting on the negligent opof official duty and under sanction of his offi-eration of an automobile on August 21, 1920, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by which the plaintiff was injured. summons was returned served on October 20. No plea was filed, but no default was taken until March 15, 1922, when the defendant was defaulted, the damages were assessed by a jury at $2,500, and judgment was rendered for that amount. No execution was issued, but the plaintiff's attorneys, by mail, on April 11 and on April 20, demanded payment of the judgment. Thereupon the defendant filed a bill in equity in the superior court, alleging that he had not been served with summons; that he did not own or operate the automobile alleged to have caused the injury complained of, and its driver was not his employee or agent; that he had no knowledge of the judgment until after the expiration of the term at which it was rendered, and therefore could not move to set aside the judgment, pray an appeal, or procure a bill of exceptions during the term, so that he had no remedy at law. The bill prayed for the vacation of the judgment, the granting of a new trial in the action, and for an injunction, in the meantime, against the collection of the judgment. An answer was filed, denying the allegations that the complainant was not served with summons, or that he had a meritorious defense to the action; the cause was referred to a master, who reported, recommending the dismissal of the bill for want of equity; and the court, after overruling exceptions to the report, entered a decree in accordance with the recommendation. The Appellate Court affirmed the decree on the complainant's appeal, and he has sued out a writ of certiorari for the review of the record. (148 N.E.) [1, 2] Where a sheriff or other officer has made a false return, whether wrongfully and intentionally, or innocently by mistake, relief may be granted by a court of equity or law, according to the circumstances, to the person injured by the false return, against the consequences, and this has frequently been done. Owens v. Ranstead, 22 Ill. 161; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 Ill. 458; Sibert v. Thorp, 77 Ill. 43; Jones v. Neely, 82 Ill. 71; Kochman v. O'Neill, 202 Ill. 110, 66 N. E. 1047; Hilt v. Heimberger, 235 Ill. 235, 85 N. E. 304. The stability of judicial proceedings, however, requires that the return of an officer, made in the due course of his official duty and under the sanction of his official oath, should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served, but only upon clear and satisfactory evidence. Davis v. Dresback, 81 Ill. 393; Kochman v. O'Neill, supra. [3] The only question necessary for our determination is whether the return has been impeached by such clear and satisfactory evidence as to show that the summons was not served on the plaintiff in error. Marnik testified that the summons was not served upon him, and he knew nothing of the suit The testimony of Larsen and Kruckstein amounts to nothing, either to assist or impeach the service. Neither has any recollection, but both rely upon their written memoranda. We must do the same, and the wellestablished rule is that the return showing service cannot be overcome by the uncorroborated testimony of the defendant. The failure of the officer making the return to remember the service is not such clear and satisfactory proof that service was not made as to impeach the return. [4] It is unnecessary to discuss the existence of a defense. After the plaintiff in error was served, it was his duty to present his defense in the action at law, and he cannot be relieved against his own neglect to do so. The letters written by the attorneys of the defendant in error to Marnik, notifying him of her cause of action and of their intention to bring suit, were not competent evidence, as they had no tendency to prove service of the summons. They were not entitled to any consideration in determining that question; but their reception did no harm, for the decree is sustained by the evidence without them. years to pay compensation and damages for condemnation by drainage district not unreasonable. [5] The interview of the defendant in er- 17. Eminent domain 241-Allowance of three ror's father with Marnik was competent upon the question of Marnik's defense, because the father testified to admissions by Marnik of ownership of the automobile; but it could not affect the decree, for whether Marnik had a defense or not, having been served with summons, he was not entitled to relief. The judgment of the Appellate Court will be affirmed. Allowance of three years from judgment to pay compensation and damages for condemnation by drainage district for diversion canals under all the circumstances of the case. outside of district held not unreasonable time, Appeal from Hancock County Court; Warren H. Orr, Judge. Action by the Hunt Drainage District against Richard Harness and others. Judgment for plaintiff, and defendants appeal. Affirmed. Mack & Mack, Williams & Williams, Hartzell, Cavanagh, Martin & Hartzell, and Scofield & Bell, all of Carthage, for appellants. Plantz & Lamet, of Warsaw, O'Harra, O'Harra & O'Harra, of Carthage, and Lyman Lacey, Jr., of Havana, for appellee. FARMER, J. Hunt drainage district, in Hancock county, was organized under the Levee Act (Smith-Hurd Rev. St. 1923, c. 42, § 1 et seq.) in 1879. It embraces 16,000 acres of land lying between the Mississippi river on the west and the bluffs on the east. Levees protect the district from overflow from the Mississippi river. Schuhart and Rocky Run creeks empty into the district at or near the foot of the bluffs. In April, 1923, the commissioners of the district filed in the county court of Hancock county a petition to condemn rights of way for the construction of diversion canals or ditches to carry the waters discharged into the district by Schuhart and Rocky Run creeks across lands lying outside the district. The owners of the lands sought to be condemned filed motions to dismiss the petition on the ground petitioners had no authority under the Constitution or statute to appropriate lands lying outside the district for the purposes mentioned in the petition, and also because it was not shown by the petition that there had been any lawful effort to agree with the landowners, or either of them, as to com Condemnation by drainage district of property outside of district for diversion canals to protect and drain lands within district held not clearly abuse of power of eminent domain, un-pensation for lands taken and damaged for der circumstances. 5. Eminent domain 68-Courts cannot interfere with condemnation as being unnecessary, where right exists. Where right to condemn lands exists, courts cannot interfere with it on grounds that exercise of power is unnecessary or inexpedient. 6. Drains 41-Slight changes in routes of diversion channels not prejudicial. Slight changes in routes of diversion channels as shown in plans and order of court, and as shown by petition, there being no substantial change in location of ditch, held not prejudicial, being merely such changes as commissioners had a right to make. the uses sought by petitioners. Answers were also filed, setting up substantially the same defense, and also denial that the diversion ditches were necessary for the rec lamation of the lands in the district. Before a jury was impaneled the court heard evidence on the preliminary question of the right to condemn the lands, and entered an order that petitioners had that right, and the landowners were given time to, and did, file cross-petitions. A jury was then impaneled, and after hearing the evidence returned a verdict awarding compensation to the respective landowners for lands taken and damages to lands not taken. Motion for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |