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roneous the directions given may be, it is the | This court may in any case, either at law or duty of the inferior court to strictly follow in equity, render final judgment, as provided the directions contained in the mandate of by section 110 of the Practice Act (Smiththis court. Blackaby v. Blackaby, 189 Ill. Hurd Rev. St. 1923, c. 110, § 110), or in case 342; Noble v. Tipton, 222 Ill. 639. of a reversal may remand the cause to the inferior court. The court, on reversing the judgment or decree and remanding the cause, may direct the inferior court to enter a particular judgment or decree, or give directions which will have that effect, and the trial court is then bound by the decision and mandate of this court. The judgment of this court is final and conclusive on the parties, and it is the duty of the trial court to conform its action to the opinion and mandate of this court. Prentice v. Crane, 240 Ill. 250, 88 N. E. 654.

[2] The only question, therefore, that is open for consideration on the record as presented at this time is, Was the decree of the circuit court in accordance with the mandate and directions of this court?" Chicago Railway Equipment Co. v. National Hollow Brake Beam Co., 239 Ill. 111, 87 N. E. 872. Where the only question on a second appeal in the same case is whether the lower court has followed the directions of the Supreme Court, if the lower court has substantially followed such directions, the judgment must be affirmed. People v. Day, 279 Ill. 148, 116 N. E. 729. There are many other decisions which hold that, where a judgment has been reversed and the cause remanded, with specific directions, the only question on a second appeal is whether the action of the trial court was in accordance with the mandate and directions of this court.

In this case the judgment was on the merits, finding that the statutory conditions authorizing the exercise of the power of eminent domain did not exist, and that therefore the petitioners could not maintain the proceeding and the court should have sustained the objection to the petition, and the cause was remanded, with directions to dismiss the petition. The judgment of the county court, merely carrying into execution the judgment of this court, was the only judgment which it had any authority to enter, and it will be affirmed. Judgment affirmed.

[3] The appellants argue that the statute gives the right to amend pleadings at any time, even after judgment, and insist that amendments may be made in the trial court, if the judgment has been reversed and the cause remanded, with directions to enter a particular judgment. The statute of amendments and jeofails does by section 1 (SmithHurd Rev. St. 1923, c. 7, § 1) authorize amendments before judgment, and by section 2 (Id. § 2) after judgment; but amendments made after judgment rendered are authorized in matter of form only, in affirmance of the judgment, so that such judg-1.

ment shall not be reversed or annulled. Defects of substance are not aided by the statute of amendments and jeofails. Foster v. Oberreich, 230 Ill. 525, 82 N. E. 858; Schueler v. Mueller, 193 Ill. 402, 61 N. E. 1044; Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680. "When a judgment is affirmed by this court all questions raised by the assignments of error and all questions that might have been so raised, are to be regarded as finally adjudicated against the appellant or plaintiff in error. A judgment or decree having been affirmed by this court must be regarded as free from all error. Gould v. Sternberg, 128 Ill. 510." People v. Superior Court, 234 Ill. 186, 84 N. E. 875, 14 Ann. Cas. 753.

[4] A judgment or decree entered by a trial court in accordance with the mandate and direction of this court must be regarded as equally free from all error. Such a judgment is final and conclusive upon all the parties, the same as if it had been entered in this court, and it is, in fact, the judgment of this court promulgated through the trial People v. Gilmer, 5 Gilman, 242.

court.

(318 Ill. 48)

HARDIN v. WOLF et al. (No. 16419.)

(Supreme Court of Illinois. June 18, 1925.

Rehearing Denied Oct. 8, 1925.) Partition deAppeal and error 80(3). cree, declaring interest of parties and appointing commissioners, is final and appealable.

Decree in partition, which finds and declares several interests of parties and appoints commissioners, is final and appealable.

2. Courts 219(23)-Partition suit held to

involve freehold estate.

either in joint tenancy or as tenants in comWhere parties to partition suit hold title mon, since, if partition should be effected, title of each cotenant would be transferred to parcel allotted to him, and, if property is sold, all estate and title are transferred to purchaser, a freehold is necessarily involved.

3. Joint tenancy 4-Trust deed to stranger effects severance of tenancy.

Execution and delivery of note and trust deed to a stranger by one joint tenant, if valid, effects severance of joint tenancy. 4. Joint tenancy

4-Execution of trust deed held, under evidence, not intended to effect severance of tenancy.

Evidence held to show that execution of note and trust deed by one joint tenant to nominal parties representing the other joint tenant was not intended to effect severance of joint

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

tenancy, but to protect the other tenant against notes secured thereby." Mary J. and John transfer of interest by tenant executing them. J. Wolf interposed a demurrer to the bill, 5. Partition 22-When partition denied, be- and assigned as the cause therefor that the owners of the note for $3,500 were necessary cause of agreement not to partition, stated. The demurrer was susEquity will not award partition between parties defendant. father and daughter, where in creating joint tenancy, they intended to provide a home for themselves during their joint lives, and that property should go to survivor, and agreement to that effect might be verbal, if acted on, or might be implied.

Appeal from Superior Court, Cook County; Oscar Hebel, Judge.

Bill by Mark Hardin against Mary J. Wolf and others, in which William B. O'Brien intervened. From a decree of partition, certain defendants appeal. Reversed and remanded, with directions.

Dwight McKay and Wharton Plummer, both of Chicago, for appellants.

O'Brien, Rutledge & Hayes, of Chicago, for appellee.

DE YOUNG, J. Mark Hardin on April 27, 1923, filed a bill for partition in the superior court of Cook county against Mary J. Wolf, John J. Wolf, her husband, and James E. O'Brien, in which it is alleged that on September 27, 1916, James C. Byrne, a bachelor, conveyed to Hardin and Mary J. Wolf, his daughter, as joint tenants and not as tenants in common, a certain lot in the city of Chicago; that the lot is improved by a twostory brick building which contains a store and undertaking room on the first floor and an apartment above, occupied by Hardin and Mrs. Wolf; that they, as joint tenants, are the owners of the premises, with the right to the sole survivorship in the surviving tenaLt; that the undivided interest of Mrs. Wolf is subject to the lien of a trust deed to O'Brien, dated and recorded on September 28, 1916, made to secure the payment of a certain note of even date, executed by Mary J. and John J. Wolf, for $3,500, payable to their own order, and indorsed and delivered, due in 10 years after its date, with interest at 5 per cent. per annum, payable semiannually; that Hardin and Mrs. Wolf are each entitled to an undivided one-half interest in the premises, subject to the homestead estate of the other; and that the share of Mrs. Wolf is further subject to the interest of O'Brien as trustee. The prayer of the bill asked that the interests of the parties be declared, that commissioners be appointed to make partition, that in the event partition could not be made the premises be sold and the proceeds divided, and that the interest of Mrs. Wolf or her share of the proceeds be charged with the lien of the trust deed, "and the rights of the unknown owner or owners, holder or holders, of the

tained.

Pursuant to leave granted, William B. O'Brien filed an intervening petition, in which he alleged that he was the legal holder and owner of the promissory note secured by the trust deed to James E. O'Brien, that he acquired title thereto from Hardin, and that no part of the interest on or the principal of the note had been paid. By his petition he admitted the allegations of the bill of complaint, submitted himself to the jurisdiction of the court, and asked that his interest in the premises might be declared. On July 27, 1923, Hardin amended his bill, by charging that William B. O'Brien was the legal holder and owner of the note for $3,500, and making him a party, defendant thereto.

Mary J. Wolf filed an answer, in which she averred, among other things, that the joint tenancy set forth in the bill of complaint was created pursuant to an agreement between her father and herself, the joint tenants; that the premises should be used and occupied by them as their home during their joint lives; that he, during the remainder of his life, should have her services as housekeeper; that upon the death of either the whole property should belong to the survivor; and that neither, after the vesting of the title in them in joint tenancy, should sell, convey, incumber, divide, or partition the property or their interests therein, or do anything to terminate their use and occupancy of the premises during their joint lines, or the vesting of the title thereto in the survivor. Mrs. Wolf further avers in her answer that her father, her husband, and herself have, since the deed in joint tenancy was executed, occupied the premises as their home; that she has performed the required services as housekeeper, given her father the necessary personal care and attention, kept the premises in good repair at considerable expense, and fully performed the agreement on her part; that she has not sold, conveyed, incumbered, divided, or partitioned the premises or her interest therein, nor has she suffered any judgment to be recovered against her; that she has done nothing to interfere with or terminate the use and occupancy of the premises by her father as a home or the vesting of the title in him in the event of her prior death; and that the instant suit is a violation of their agreement, and an attempt to oust her from the enjoyment of the premises, and to prevent her from obtaining the title thereto in case she survives her father. In her answer

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

They are: First, that the decree from which the appeal is prosecuted is not a final decree; and, second, that a freehold is not here involved.

[1] In support of the first contention it is argued that there is no appealable decree in a partition suit until the commissioners appointed have made their report. By the decree under review the interests of the several parties to the suit are ascertained and declared, and commissioners to make partition are appointed. A decree which finds and declares the several interests of the parties, and appoints commissioners, is a final and appealable decree. Clawson v. Ellis, 286 Ill. 81, 121 N. E. 242; White v. Van Patten, 280 Ill. 215, 117 N. E. 472; Lantz v. Lantz, 261 Ill. 194, 103 N. E. 749; Ellguth v. Ellguth, 250 Ill. 214, 95 N. E. 169.

Mrs. Wolf then avers that, after the execution of the deed in joint tenancy, her father represented to her that for his protection a note and trust deed were necessary to prevent a transfer of her interest to his prejudice, and that his attorney, William B. O'Brien, had prepared a note and trust deed for that purpose; that her father requested her husband and herself to sign the note and trust deed; that the attorney made like representations, and stated that, in the event of her father's prior death, the note would be surrendered and the trust deed released that pursuant to her father's request, and having implicit confidence in him, and relying upon the representations made by him and his attorney concerning their purpose and necessity, she and her husband signed the note for $3,500, dated September 28, 1916, and the trust deed to James E. O'Brien to secure its payment; that they received no consideration whatever therefor; that William B. O'Brien is not the holder and owner of the note and trust deed; that these instruments are not a charge upon her interest in the property; and that they were made without consideration and are wholly null and void. The answer concludes with the denial that Hardin is entitled to the relief the estate and title of all the cotenants to sought.

John J. Wolf by his answer claims an inchoate right of dower in his wife's interest in the premises, and avers that her answer is true, and that he adopts it. William B. O'Brien also filed an answer, in which he stated that he holds and owns the promissory note for $3,500 and the trust deed to James E. O'Brien which secures its payment, and that no part of the interest on or principal of the note has been paid. By his answer he admits the allegations of the amended bill of complaint, and avers that Hardin is entitled to the relief which he seeks.

Replications were filed to the several answers. The cause was referred to a master in chancery, who heard and reported the evidence, with his findings, and recommended a decree of partition. Objections and exceptions to the master's report were over ruled, and a decree of partition was entered, which, among other things, finds and declares that Hardin and Mary J. Wolf are the owners in fee simple as joint tenants of the premises in question; that the trust deed to James E. O'Brien, dated September 28, 1916, which secures the payment of the note for $3,500, is a valid first lien on the interest of Mary J. Wolf; that the note has not been paid, and that William B. O'Brien is the owner thereof. From that decree Mary J. and John J. Wolf, her husband, prosecute this appeal.

Before considering the merits of the instant case, disposition must be made of two preliminary contentions urged by appellee.

[2] With reference to the second contention, Mary J. Wolf and appellee hold title to the property, either in joint tenancy, subject to certain conditions, or, by operation of law, as tenants in common. If partition should be effected, the title of each cotenant is transferred to the parcel allotted to him, and, in the event that the real estate cannot be divided, a sale follows, which transfers

the purchaser. The subject-matter of this suit is a freehold estate, and a freehold is necessarily involved. Schwartz v. Ritter, 186 Ill. 209, 57 N. E. 887; Wilson v. Dresser, 152 Ill. 387, 38 N. E. 888; Bangs v. Brown, 110 Ill. 96.

The evidence shows that appellee purchased the lot in question, now known as 1115 Roosevelt road, Chicago, in June, 1883. In the following year he improved the lot with a two-story brick building, which, as re-modeled, is now situated upon it. At that time appellee was married and had six children. He resided with his family on the second floor of the building and occupied the first floor to conduct his undertaking business. Mary J. Wolf, appellee's daughter, was married to John J. Wolf in the year 1889. For 2 or 3 years following their marriage they occupied a separate home, but early in the year 1902 they moved to appellee's apartment, and have since resided there with him. Mrs. Wolf worked for her parents, and John J. Wolf was employed by appellee to assist him in his undertaking business. Appellee's wife had two insurance policies upon her life, aggregating $1,800, in which her daughter, Mrs. Wolf, was the beneficiary. After her mother's death, which occurred on January 17, 1905, she collected the money due on the policies. Appellee insisted that the money so collected rightfully belonged to him, and he disputed his daughter's right to retain it. She lent him the proceeds of the policies and $200 additional, making a total of $2,000, for which, on October 3, 1905, he gave her his note for $2,000, due in 10 years

(148 N.E.)

after its date, with interest at 3 per cent.pellants; that he suggested that the title to per annum, payable semiannually, and se- the property should be placed in the names cured its payment by a trust deed on the of Hardin and his daughter in joint tenproperty in question to John J. Mahoney. ancy; that appellants were not represented Subsequently, on February 27, 1906, appellee made a note for $4,000, due in 5 years from its date, with interest at 5 per cent. per annum, and to secure its payment executed a trust deed on the same property to the same trustee. The note and trust deed for $4,000 did not represent an actual indebted ness, but were executed to hinder and delay a creditor of appellee.

by a lawyer, and that they relied upon him; that they stated they would follow his advice, and on September 27, 1916, deeds were accordingly made, by which the title was so vested; that since the property was then worth $10,000 or $11,000, and Mrs. Wolf had stated that all she wanted was $2,000 and the interest due her, he also suggested, in order fully to protect appellee's interest, that On April 11, 1906, appellee conveyed the the daughter's share should be incumbered premises to Mrs. Wolf, subject to the two by a trust deed securing the payment of a incumbrances. The consideration in this note for $3,500; that, on the evening followdeed was stated to be $500, and for this suming the day the joint tenancy deed was exeMrs. Wolf gave a note to appellee, which is cuted, appellants, pursuant to notice given still held by him, uncanceled. No interest them, called at his home, where the note has ever been paid upon this note. In 1916, for $3,500 and the trust deed securing its as the result of a conference between her payment were executed; that he advised father and his attorney, her husband, and them to sign the note and trust deed, which, herself, she conveyed the property to. James with Mrs. Wolf's claim for $2,000, constituted C. Byrne, a law clerk in the office of appel- the purchase price of a half interest in the lee's attorney, and Byrne on the same day property; that the note and trust deed for by a warranty deed conveyed the premises $3,500 did not recite that they were given to appellee and Mrs. Wolf in joint tenancy. for part of the purchase price; that he sent At that time the widening of Roosevelt road a bill for his services to appellants, because was in progress. The north 42 feet of the appellee had told him that the transaction property had been condemned by the city of was for their benefit, and that appellants Chicago, and the compensation to be paid paid the bill; that he represented appellants for the portion taken was fixed at $6,272.50. and appellee in their negotiations with the Before the city would pay the award, how-city of Chicago to obtain payment of the ever, releases of the two trust deeds securing award in the condemnation proceedings, and the payment of the note for $2,000, dated that counsel for the city required releases of October 3, 1905, and the note for $4,000, the incumbrances for $2,000 and $4,000 bedated February 27, 1906, were required. fore the award could be paid; that on NoSuch releases were filed for record on De-vember 22, 1916, he canceled the trust deed cember 5, 1916, and on the following day the award was collected and deposited to the joint credit of appellee and Mrs. Wolf in Graham & Sons' Bank, in Chicago.

securing the payment of the note for $2,000, dated October 3, 1905, and that in January, 1917, at the request of Mrs. Wolf, and, in order that she might have evidence of that indebtedness, he drew a note, to be signed by appellee, for $2,600, to include the interest and principal due on the note dated October

Mark Hardin, appellee, testified that he and his daughter, Mary J Wolf, held title to the property as joint tenants; that he had never received any interest on the mort-3, 1905, since canceled. gage for $3,500; that in another bill of com- According to the testimony of Mary J. plaint, which he filed in the superior court Wolf, the creation of the joint tenancy was of Cook county on December 1, 1922, he al- suggested by her father, to protect her from leged that he was the owner of the mort- any trouble that might arise after his death. gage; that, although he asked by the prayer He requested her to remain in his home, to to the bill of complaint in this suit that the care for him and to assist in the conduct interest of Mrs. Wolf might be charged with of his business, and stated that upon his the rights of the unknown holders and own-death the property would belong to her. She ers of the note secured by the trust deed to informed him that she was satisfied with James E. O'Brien, he was, in fact, the hold- that arrangement. Nothing was said about er of that note when the bill was filed; that appellants giving a $3,500 note and trust by his amendment to the bill in this suit he deed at the time the joint tenancy deed was alleged that his attorney, William B. O'Brien, executed. The note and trust deed were first was the holder of the note, but that O'Brien mentioned on the evening of the next day, had paid nothing for it, and he admitted when at her father's request she, with her that the note and trust deed, dated Febru-husband, called upon Attorney O'Brien, who ary 27, 1906, for $4,000, were made to hinder informed them that her father desired a and delay a certain creditor. mortgage on her one-half of the property

William B. O'Brien testified that he rep for his protection against conveyances, mortresented appellee in transactions with ap-gages, and judgments. In answer to their

were discharged. The releases were recorded December 5, 1916, and on the following day the award was paid. If the price of a one-half interest in the property was $5,500, and the purchase was made by the cancellation and surrender of the note for $2,000 and the execution of the mortgage for $3,500, as O'Brien testified, then the accrued interest on the incumbrance for $2,000, approximately $660, was ignored. If the note for $2,000 was so applied, then the obligation was discharged, and O'Brien would not have had occasion in January, 1917, when Mrs. Wolf called at his office, to draw a note, to be signed by appellee, as a substitute for it. If there had been an actual sale, the existing incumbrances would have been released, the interest on the new mortgage would have been collected, and in all probability there would have been an accounting between them for the value of the use and occupation of the property. The conduct of the parties fails to show that they treated the deed in joint tenancy, and the trust deed which followed it, as effecting a sale of a one-half interest in the property to Mrs. Wolf.

inquiry O'Brien stated that it would be per- [accrued on each for nearly 11 years—were fectly safe and proper for them to execute not released. It was not until payment of the note and trust deed, and that upon her the award made in the condemnation suit father's death the note would be surrender- was sought that these two incumbrances ed and the trust deed released. Relying upon the assurances of her father and his attorney, she and her husband signed the note and trust deed. In November, 1916, she accompanied her father to O'Brien's office. He told her that she would have to cancel her note for $2,000, and release the trust deed securing it, to obtain the award made in the condemnation suit. When she asked how she would be protected by discharging the incumbrance without receiving payment, the attorney stated that the city would pay the award to her father and herself jointly. At the same time her father promised to pay the principal and interest due her out of his share of the award. Shortly thereafter the city paid the award, and it was deposited to their joint account in Graham & Sons' Bank. Later her father induced her to sign a blank check, upon the representation that he wished to pay a small account. He took the check and withdrew the balance from the bank. After discovering that the money had been withdrawn, she informed O'Brien what her father had done, and asked him how she was secured in the payment of the money due her. He wrote a promissory note for $2,600, to include both principal and interest, and requested her to take it to her father for his signature. She informed her father that she had obtained the note from O'Brien and asked him to sign it, so that she would have some evidence of his indebtedness which her husband might receive after her death. Her father took the note, refused to sign it, and stated that he had endeavored for years to obtain the money, and had finally succeeded. John J. Wolf testified that when the joint tenancy deed was made nothing was said about a note or trust deed; that pursuant to appellee's request he, accompanied by his wife, called at the home of O'Brien, the attorney, on the evening of September 28, 1916, the day after the joint tenancy deed had been executed, and that O'Brien then stated that a note and trust deed had been prepared for appellee's protection, and that it was perfectly safe and proper to execute them; that, upon inquiry by Wolf what would happen in case of appellee's death, O'Brien replied that it would only be neces-ed by any of the parties, as appears, not sary to have his (O'Brien's) father, James E. O'Brien, release the trust deed, and that he, the attorney, would see that it was done. Appellee insists that by the deed in joint tenancy and the note for $3,500 secured by the trust deed a sale of a one-half interest in the property to Mary J. Wolf was consummated. If these instruments effected such a sale, it is remarkable that the existing incumbrances on the property-one for $2,000 and the other for $4,000, with interest [5] The facts and circumstances shown by

Appellee, in his bill of complaint in a former suit, alleged that he was the owner of the note for $3,500. He sought by the prayer of his bill in this suit to charge the share of Mary J. Wolf with the rights of the unknown holders of the note. Later, by an amendment to the same bill, he alleged that O'Brien, his attorney, owned the note. Appellee's testimony is that, notwithstanding the prayer of his bill, he owned the note when the bill was filed, but that he later transferred it to O'Brien without any consideration. O'Brien, too, testified that he paid nothing for the note, and no interest was ever collected upon it. Whether appellee or his attorney holds the note and trust deed is inconsequential, for they were made without consideration, and are void in the hands of either.

[3, 4] The execution and delivery of the note and trust deed to a stranger, if valid, would effect a severance of the joint tenancy. Lawler v. Byrne, 252 Ill. 194, 96 N. E. 892. Such a result, however, was not contemplat

only from the testimony, but also from the allegation of the bill that appellee and Mrs. Wolf, as joint tenants, are the owners of the property, with the right to the sole survivorship in the surviving tenant. While the note and trust deed could not fully protect appellee against a transfer of Mrs. Wolf's interest in the property, yet the evidence shows that they were given for that purpose at appellee's request.

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