(146 N.E.) mains a town which under the laws of this state functions as a municipal corporation. Where, however, the whole town is taken, it is destroyed, because no part of it is left to function. It is clear, therefore, that the attempt to organize Rock Island township under the provisions of the act above quoted was a nullity. Whether it has legal existence under any other section of the statutes with respect to the organization of towns is not presented for decision. similar contracts, and for the purpose of cheating and defrauding the complainant out. of the money due him, a large part of the cost of the building under said contracts was paid by Feyreisen from his individual funds; and that after the making of the contract Feyreisen, without consideration, transferred his property to his wife for the purpose of placing it beyond the reach of the complainant. It is further charged that by reason of the payments made by Feyreisen under The judgment of the circuit court is af- the contracts for the construction of the firmed. Judgment affirmed. (315 Ill. 617) GREENFIELD v. FEYREISEN et al. (No. 16354.) (Supreme Court of Illinois. Feb. 17, 1925.) Fraudulent conveyances 299(12)-Evidence held not to warrant finding that husband paid for improvements on wife's property. Evidence that wife gave to her husband money more than sufficient to pay for improvements on her property held not to warrant finding that he made payments for improvements from his personal funds at a time when he was insolvent, or to warrant decree holding wife's property liable for his obligations. Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge. Bill by Peter A. Johnson against Lina Feyreisen and others. From a judgment of the Appellate Court affirming decree of the superior court, the defendants appeal, pending which C. W. Greenfield, administrator of complainant, was substituted as appellee. Reversed and remanded, with directions. building upon his wife's land he acquired an equitable interest in the property to the extent of the payments so made by him, and that such interest at the time of his death was held by Lina Feyreisen in trust for his use and benefit; that the making of such payments rendered him wholly insolvent and to the time of his death he had no means of paying his debts, and the amount of his personal estate was $128. It is further alleged that the complainant brought suit in the municipal court of Chicago against Feyreisen on the contract with him and recovered a judgment for $404.90; that he appealed from such judgment and it was reversed in the Appellate Court, which rendered judgment in favor of the complainant for $717.58, which remains unpaid. An answer was filed, the cause was referred to a master in chancery, who made his report, which was approved, and a decree was entered finding that Lina Feyreisen was the owner in fee simple of the premises: that Paul L. Feyreisen made a series of contracts with her consent, one of such contracts being with the complainant for labor and material; that the work was commenced about May 22, 1914, and completed on December 16, 1914, and the architect's final certificate showed $671 due the complainant, which was not paid; that Feyreisen died on February 22, 1916, and the total assets of his estate, as shown by the inventory, amounted to $128, and the estate was insolvent; that all the contracts for the improvement of the building were made in the name of Feyreisen, but he at no time had sufficient resources to meet the contracts, DUNN, J. Peter A. Johnson on February which amounted to more than $18,000; that 1, 1917, filed in the superior court of Cook he paid $1,796 toward the total indebtedness, county a bill to establish a mechanic's lien and that at the time of such payment he was on certain premises in Chicago owned by the insolvent; that such transfer constitutes conappellant Lina Feyreisen. The bill was structive fraud on the creditors of Feyreisen amended and a demurrer was sustained to and a constructive trust arose by reason the amended bill, the statutory notice re- thereof which existed at the time of his quired as a basis for the suit not having death and is subject to the rights of his credbeen filed in proper time. A second amended itors after payment of debts. The decree bill was filed, which was in the nature of a found the value of the real estate to be $25,creditor's bill, and charged that the complain-000 and that the complainant had a lien upant made a contract with Paul L. Feyreisen, on 179625,000 of the interest of the defendants Lina's husband, for the carpenter work of in the property for the payment of the sum the building to be erected on the premises; of $932.85, for the payment of which the that in the erection of the building a large decree ordered that interest to be sold. number of contractors were employed under An appeal was taken to the Appellate Court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Huss & Rehm and Bradley, Williams, Kearns & Farrell, all of Chicago (Thomas E. D. Bradley and Edward J. Farrell, both of Chicago, of counsel), for appellants. C. W. Greenfield, of Chicago, for appellee. for the First District. Peter A. Johnson | sonal funds. On the contrary, it appears died during the pendency of the appeal in the that he was furnished more than enough Appellate Court, and C. W. Greenfield, his money by his wife to make all the payments administrator, was substituted as appellee. shown to have been made. The Appellate Court affirmed the decree and granted a certificate of importance and appeal to this court. The judgment of the Appellate Court and the decree of the superior court will be reversed and the cause remanded, with directions to the superior court to dismiss the bill. Reversed and remanded, with directions. The appellants argue, among other things, that the facts present no equity sufficient to form the basis of a bill in the nature of a creditor's bill, that the evidence does not prove the insolvency of Paul L. Feyreisen at the time the payments were made, and that no sufficient proof was made of payments by Feyreisen on the building. If the last objec- STANDARD TRUST & SAVINGS BANK V. tion to the decree is sustained, there is no necessity to consider the others. The architect who prepared the plans and superintended the work of the building at a cost of 3 per cent. of the improvements testified in regard to its cost. His commission amounted to $525. He testified that the estimated cost at the beginning of the construction amounted to $17,500, but that Feyreisen made changes in terra cotta work which added several hundred dollars to the cost, and the total cost was something over $18,000. He made the contracts in Feyreisen's name. There was a two-story frame residence on the rear of the lot which at the time was occupied by Feyreisen's family, and a heating plant was installed in this building costing $300. The contracts for the painting, glass, galvanized iron, and hardware did not go through the architect's hands. The painting, he testified, was $430. The total cost, then, as shown by the evidence, did not exceed $18,230, being the amount of the original contract, $17,500, the installation of the heating plant, $300, and the painting contract, $430. Of this amount the final payment to Peter A. Johnson, the complainant, was unpaid, $671, so that the total amount which the evidence shows to have been paid in the construction of the building was $17,559. (315 Ill. 451) CARLSON et al. (No. 16259.) (Supreme Court of Illinois. Feb. 17, 1925.) 1. Deeds 177-That grantor retained possession and control of property after delivery of deed does not reinvest him with title.. title, that grantor retained possession of propIf deed is delivered with intent to convey erty and exercised dominion over it until his death does not reinvest him with title. 2. Deeds 194(1)-In case of deed of voluntary settlement, grantor has burden of proving want of delivery. In case of deed of voluntary settlement, presumption of law is in favor of delivery and burden is on grantor or those claiming under him to show want of delivery. 3. Deeds 194 (2)-Presumption of delivery arises from grantee's possession of duly executed deed. Presumption of delivery arises from finding of duly executed deed in hands of grantee, which is overcome only by clear and convincing evidence. 4. Witnesses 149(2)-Grantee, son of deceased grantor, is not competent witness for himself, in action by grantor's executor to set aside deed. is Grantee in deed, son of deceased grantor, not competent witness in his own behalf, in action by grantor's executor to set aside deed. 5. Deeds 208(1)-Evidence held insufficient to show nondelivery. Evidence held insufficient to show nondelivery of deed of voluntary settlement on grantor's son. Appeal from Superior Court, Cook County; Oscar Hebel, Judge. Suit by the Standard Trust & Savings Bank, executor of John A. W. Fernow, Sr., deceased, against Androv Carlson and oth Mrs. Feyreisen borrowed on a mortgage of Greenebaum Sons Bank & Trust Company $14,000. She made another note of $1,000 to the same bank. Her account showed that she made another deposit of $100, and had a credit of $35 by interest account, a total of $15,130. The expenses attending the loan are shown to have been $636.15, leaving a net amount of $14,719.85. In addition to that she borrowed $2,500 of the Central Trust Company, used the bank account of her three daughters, $525, and the proceeds of two shares of stock in the Bowmanville Bankers. Company, $300. These four items amounted to $18,118.85, or $559.85 more than the evidence shows was paid on contracts for the erection of the building. The contracts were made in the name of Paul L. Feyreisen, but the evidence does not show that he made any payments on the contracts out of his own per-ed to review a decree of the superior court From the decree, complainant appeals. Affirmed. John W. Ellis, of Chicago, for appellant. George Steinbrecher and Lewis S. Eaton, both of Chicago, for appellees. THOMPSON, J. This appeal is prosecut (146 N.E.) of Cook county denying the relief prayed | tion after the deed was executed by Sanin a bill filed by appellant to declare it to have title, as trustee under the will of John A. W. Fernow, Sr., deceased, to an undivided one-half interest in certain lands in Cook county, and granting the prayer of the crossbill of appellee John A. W. Fernow, Jr., and decreeing that he is the owner of the undivided one-half interest in said lands. The facts material to a decision of this case are the following: on the grantor, or those claiming through him, to show want of delivery. Whipple v. Carrico, 305 Ill. 164, 137 N. E. 84; Johnson v. Fleming, 301 Ill. 139, 133 N. E. 667; Waters v. Lawler, 297 Ill. 63, 130 N. E. 335; Jones v. Schmidt, 290 Ill. 97, 124 N. E. 835. It is also well established that, where a deed duly executed is found in the hands of the grantee, a presumption of delivery arises, and this presumption can be overcome only by clear and convincing evidence. Maule v. Maule, 312 Ill. 129, 143 N. E. 422; Pemberton v. Kraper, 289 Ill. 295, 124 N. E. 611; Johnson v. Fulk, 282 Ill. 328, 118 N. E. 706. dell and delivered to Fernow, Sr., and by showing that Fernow, Sr., in conversations with Carlson, Sandell, and others, discussed the lands as though he were the owner of them. If the deed was in fact delivered by Fernow, Sr., to Fernow, Jr., with intent to convey the title to the property to the latter, the fact that Fernow, Sr., retained possession of the property and exercised dominion over it until his death would not reinvest In January, 1920, Dr. John A. W. Fernow, him with title. Moore v. Downing, 289 Ill. Sr., and Androv Carlson, purchased the lands 612, 124 N. E. 557; Lines v. Willey, 253 Ill. in question for the sum of $12,000 and built 440, 97 N. E. 843. It is well settled by the thereon a factory for the use of the Amer-adjudicated cases that, in the case of a deed ican Airless Tire Company, a corporation | of voluntary settlement, the presumption of owned by them. Title to the real estate was law is in favor of delivery, and the burden is taken in Karl Sandell, a son-in-law of Carlson. Sandell had no interest in the real estate or the company. Thereafter Carlson and Fernow, Sr., had quitclaim deeds executed by Sandell, conveying to Carlson and Fernow, Jr., each an undivided one-half interest in the real estate. These deeds were never recorded. After the execution and delivery to Carlson and Fernow, Jr., of these deeds, Fernow, Sr., continued to exercise control of the property in question and to deal with Carlson, his banker, and other, persons as though he were the owner of an undivided one-half interest in the land. Fernow, Sr., caused the deed which Sandell executed and delivered to him to be prepared, and Sandell, having no personal interest in the property, did not pay any particular attention to the contents of the deed, and does not remember who was named grantee. About three weeks prior to the death of Fernow, Sr., Sandell saw the deed in the possession of Fernow, Jr., and the deed then showed the grantee to be John A. W. Fernow, Jr. The deed continued in the possession of Fernow, Jr., until the death of his father, and after his father's death until it was delivered by Fernow, Jr., to Carlson for the purpose of selling the lands to appellee Frank E. Reda. By his last will and testament Fernow, Sr., named his son, John A. W. Fernow, Jr., and his daughter, Marie F. Leith, chief beneficiaries, and named appellant, the Standard Trust & Savings Bank, executor of and trus-erty. Appellant has not sustained the burtee under his will. [1-3] Appellant contends that the quitclaim deed executed by Sandell was not delivered to Fernow, Jr., by Sandell or Fernow, Sr. It supports this contention by proof of facts showing that Fernow, Sr., exercised acts of ownership, dominion and control over the one-half interest in the premises in ques [4, 5] Appellant has not produced any direct evidence showing that the deed was not delivered to Fernow, Jr., by Fernow, Sr., nor any evidence showing or tending to show that "Jr," did not follow the name of the grantee in the quitclaim deed prepared under the direction of Fernow, Sr., and which Sandell executed and delivered to him at his direction. Fernow, Jr., was not a competent witness in his own behalf, and he was not called by appellant. The deed conveying the land to Fernow, Jr., was in his possession prior to the death of his father, and continued in his possession after his father's death. Many times the father expressed his intention of conveying the property in question to his son, explaining that he had advanced considerable money to his daughter, and that his son was entitled to this prop den of showing that this deed of voluntary settlement found in the possession of the grantee was not duly delivered, and the chancellor properly decreed that the lands belong to appellee John A. W. Fernow, Jr. The decree of the superior court is affirmed. Decree affirmed. (316 Ill. 141) Petition of FORBES. (No. 16404.) (Supreme Court of Illinois. Feb. 17, 1925.) Certiorari 70(1)-Circuit court's order on certiorari to review decision of board of appeals under zoning act not reviewable by Supreme Court on appeal or writ of error; "suit in equity"; "proceeding at law." Circuit court's order on certiorari, under Zoning Act, § 3 (Smith-Hurd Rev. St. 1923, c. 24, § 68), to review action of board of appeals on petition for exemption of property from operation of zoning ordinance, remanding case to board of appeals, with directions to dismiss petition, held not reviewable by Supreme Court on appeal or writ of error, since the writ of certiorari is a special statutory writ, and the proceeding is not a "suit in equity" or a "proceeding at law," within Practice Act, § 91 (Smith-Hurd Rev. St. 1923, c. 110, § 91). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proceeding; Suit in Equity.] ing Act provides that the board of appeals shall hear and decide appeals from, and review any order, requirement, decision, or determination made by, an administrative cfficial charged with the enforcement of any zoning ordinance adopted pursuant to the act. The act further provides that the decision of the board of appeals may be reviewed by any court of record, provided the court grants the prayer of the petition filed Appeal from Circuit Court, Cook County; with it, and directs the issuance of a writ Philip L. Sullivan, Judge. In the matter of the petition of George S. Forbes for exemption of property from operation of zoning ordinance. From order remanding case to Board of Appeals, with directions to dismiss petition on certiorari, petitioner appeals. Appeal dismissed. of certiorari. Smith's Stat. 1923, p. 227. The writ of certiorari authorized by the act is a spécial statutory writ, and the proceedings with respect thereto are controlled by the statute creating the board of appeals and the right to review its decisions. The statute does not authorize a review of the judgment of the court of record reviewing the decision John L. Davidson, of Chicago, for appel- of the board of appeals, and, there being no right of review by appeal granted by the lant. Charles P. Molthrop, of Chicago, for appel- statute, no right to appeal exists. lee. THOMPSON, J. Appellant, George S. Forbes, the owner of certain property in the village of River Forest, which village is zoned into residential, commercial, and industrial districts, filed an original petition with the board of appeals created by the zoning ordinance of River Forest, asking that his property, which is located in "A" district, where the use of property is restricted to family residences, be exempted from the operation of said ordinance so that he could use it for business purposes. The board denied the prayer of the petition, and the circuit court of Cook county, on petition of appellant, allowed a writ of certiorari to The cirreview the decision of the board. Union Drainage District v. Dupuis-Granger Drainage District, 313 Ill. 37, 144 N. E. 315; People v. Andrus, 299 Ill. 50, 132 N. E. 225; Drainage Comrs. v. Harms, 238 Ill. 414, 87 N. E. 277. This proceeding is not a suit in equity or a proceeding at law within the meaning of section 91 of the Practice Act (Smith-Hurd Rev. St. 1923, c. 110, § 91), and so the judgment of the eircuit court is not reviewable either by appeal or writ of erPeople v. Emmerson, 294 Ill. 219, 128 ror. N. E. 385; Christensen v. Bartelmann Co., 273 Ill. 346, 112 N. E. 686; Myers v. New comb Drainage District, 245 Ill. 140, 91 N. E. 1070. The appeal must be dismissed for want of jurisdiction to entertain it. Appeal dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (315 III. 454) (146 N.E.) MOELLER v. MILLER et al. HAIMOWITZ v. MILLER. (Supreme Court of Illinois. Feb. 17, 1925.) 1. Mortgages 494-Requirement that commissioner's sale of property be confirmed by court is good and safe practice. Though there is no statutory provision requiring court's confirmation of sale by commissioner in proceedings to foreclose trust deed, such requirement in decree of sale is good and safe practice. 2. Mortgages 529 (3)-Though sale not required to be confirmed by court, it should on proper complaint be set aside for fraud or gross irregularity. Even in absence of provision for confirmation of sale by court in decree of sale in foreclosure proceedings, it is duty of court on proper complaint made to set aside sale for fraud or any gross irregularity. 3. Mortgages 526(1)-Where decree of sale requires confirmation by court sale is not consummated until confirmed. All parties to proceedings to foreclose deed of trust are bound by decree of court ordering sale, and, where such decree requires confirmation of sale by court, sale is not consummated until confirmed. 5. Mortgages 526 (2)-Where master's sale properly conducted, mere inadequacy of price will not justify court in refusing confirmation of sale, unless so great as to amount to fraud. Where foreclosure sale by master in chancery is conducted in accordance with order of court, and purchaser is stranger to order of sale, inadequacy of price alone will not justify court in refusing confirmation, unless so great as to amount to fraud. 6. Mortgages 526(2)-To warrant refusal of confirmation of sale on ground of inadequacy of price amounting to fraud, further fact that there is no right of redemption must exist. To warrant court in refusing confirmation of master's sale on ground of gross inadequacy of price amounting to fraud, there must exist a further fact that there is no right of redemption. Appeal from Circuit Court, Cook County; Hugo M. Friend, Judge. Suit by E. P. Moeller against Peter Miller, Emma Miller, and others to foreclose trust deed, wherein Samuel Mayer Haimowitz, purchaser of property at master's sale, was on petition made party of record. From an order disapproving master's report of sale and ordering resale, Samuel Mayer Haimowitz, purchaser, appeals. Order affirmed. John W. Ellis, of Chicago, for appellant. DUNCAN, C. J. E. P. Moeller filed his bill in the circuit court of Cook county against Peter Miller, as trustee, Emma Miller, Hubbard Miller, Walter Froehlich, and John Almdale, to foreclose a second trust deed executed by Laura Moeller, a widow, in favor of Peter Miller as trustee, on certain premises therein described located in Cook county, given to secure a note for $300, due one year after date, and bearing interest at 6 per cent. Appellee, Emma Miller, was the owner of the equity in the premises at the time the bill was filed. The bill alleged that there was a prior incumbrance on the premises of $2,000 which was past due. Appellee answered the bill, and upon a hearing a decree of foreclosure was entered with a find ing that default in payment of the indebted ness had been made, and that the amount that the lien was subject to the prior lien of $470.85 was due. The decree provided for $2,000. A master in chancery was ordered to issue to the complainant a certificate of indebtedness in the amount found due, and if the amount of the certificate was not paid within 15 months that the premises be sold to satisfy the indebtedness. The decree provided that the sale be held at the Chicago real estate board rooms, and that the master give notice of the time, place, and terms of Showing on objection to confirmation of the sale by publishing such notice at least master's sale of property for $575 that prop- once each week for three weeks in a secular 7. Mortgages 526 (2)-Sale price of property held so grossly inadequate as to amount to legal fraud warranting refusal of confirmation, and granting resale. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-29 |