McComb v. McComb

Mr. Chief Justice Farmer delivered the opinion of the court: Appellant contends the court erred in decreeing that she convey to appellee the Rogers Park property; also in not decreeing that she was entitled to a divorce on the ground of extreme and repeated cruelty. Appellee insists on an affirmance of the decree as being equitable and just under the evidence which the chancellor heard. He does not question the correctness of the decree in awarding appellant a divorce on the ground of desertion. While there is evidence in the record tending to support the allegations of the cross-bill as to extreme and repeated cruelty, inasmuch as appellant was granted a decree for divorce on account of the fault of appellee she has no substantial ground of complaint, even if the divorce might have been granted for other causes also. This leaves as the only matter in controversy to be decided the disposition to be made of the Rogers Park property. It appears from the evidence that at the time of the marriage of appellant and appellee he was the owner of this property and the seventy-six feet in Austin, upon all of which there was a lien for a part of the purchase price. Appellant at that time was also possessed of some real and ' personal property in her own right. The parties lived together, during the larger portion of their married life, in a cottage owned by appellant. She had kept boarders prior to her marriage and continued to do so a part of the time afterward, and by this means and the use of her own property and funds she contributed substantially to the support of herself and husband, and it is clear from the evidence that at least a part of her private means was used in removing the encumbrance from appellee’s property. The parties were married late in life, neither having been married before. They were not congenial, disagreed and quarreled a great deal, and as a natural result their married life was a failure. Acts of violence and manifestations of jealous-rage on the part of appellee, usually caused by partial intoxication, are testified to by appellant, and she is corroborated, in part, by other witnesses. It appears that following these occasions he would deeply regret his conduct, apologize and promise that it would not occur again. On the 30th of August, 1902, both parties went together to the office of an attorney in Chicago and there jointly executed and acknowledged a warranty deed in which appellant was named as grantee, conveying to her the property in Austin and Rogers Park. Appellee insists here, and testified in the court below, that this deed was to be recorded and become effective only in case of his death, and if he recovered from the illness from which he was then suffering, the deed was to be returned to him and considered void. Appellant insists, and testified, the deed was an unconditional conveyance of the property to her, made in consideration of money advanced by her and of her time and labor which he had the benefit of. To establish his contention that the deed was conditional the burden of proof rests upon appellee, as the deed, as executed, is in the usual form of warranty deed, containing no conditions or reservations except the clause, “subject to all taxes subsequent to those levied for the year 1901.” After a careful examination of the evidence it is our opinion that appellee has not only failed to establish his contention by the burden of proof but that the weight of the evidence is against him. We are forced to the conelusion that this deed was executed and delivered by appellee in contemplation of a permanent separation from the appellant and as a settlement upon her or as a division of property between them, and with the idea that one of them would eventually secure a divorce. This is evidenced by his desertion of appellant a short time after the deed was made and from several" letters introduced in evidence written by appellee to appellant while he was in California and Arizona. In none of these letters is any mention made of the conditions upon which he claims he deeded the property to her. In them he makes several propositions to her to trade certain property which he owned for a part of that he had conveyed to her, and from reading this correspondence no one could form the conclusion that at that time he claimed any interest whatever in the property which he sought to have her convey to him in exchange for that which he offered to convey to her. If his deed had been made upon the condition that he claims, namely, that it was only to become effective in case of his death, it is impossible to believe, from reading these letters, written several months after the deed was executed, when his health was apparently in such condition that he had no apprehension of death in the near future, that he would malee repeated efforts to dispose of valuable property to which his title was unquestioned, in exchange for only a part of the land he had deeded to his wife, and which", according to his insistence, was already his own. Also the clause inserted in the deed that the grantee should pay the taxes levied subsequent to the year 1901 is repugnant to any idea but that the grantor had parted with all interest in and control over the property. This deed was executed voluntarily by appellee upon what he then regarded as sufficient consideration, without fraud or coercion on the part of appellant. He was satisfied with the settlement at the time, and because he later decided that it was inequitable and to his disadvantage is no reason why a court of equity should relieve him from the consequence of his act. “Where the conduct of the grantor and all the circumstances are such as to indicate that the grantor intended to give effect and operation to the deed and to relinquish all power and control of it, the law will give effect to the deed accordingly and will hold that there has been a delivery of the same.” Shields v. Bush, 189 Ill. 534, and cases there cited. The decree of the superior court is affirmed in all respects except that part of it which finds appellee to be the owner of the Rogers Park property and directing a conveyance thereof to him by appellant, and to that extent the decree is reversed and the cause remanded to the superior court, with directions to enter a decree in accordance with the views herein expressed. Reversed and remanded, with directions.