Petition for Writ of Certiorari — Behrends v. Waide

NOV 19 1954

HAROLD 8. WILLEY, Clerk

PETITION FOR WRIT or CERTIORARI

to the Supreme Court of Illinois

That on October the 11, 1954 an Order Extending Time

to File Petition for Writ of Certiorari was granted to

the Petitioner, Syble H. Behrends, by Associate Justice

of said Court until November 10, 1954 including said date.

This case comes to the Supreme Court of the United

States on a Writ of Certiorari from the Supreme Court

of the State of Illinois. This case was filed in Brown

County, Illinois, on a petition to set aside a deed of con-

veyance to a daughter. The complaint consisted of two

Counts in Chancery filed on August 1, 1952; setting forth

ilies

that she was the owner of a tract of land described as

follows :

five (45) acres of the East Half of

ter (SE%4) oe Ret eee.

Range Three

(3) West ofthe Fourth Principal Meridian situated

That a quitelaim: deed was fraudulently written and

obtained by defendant, Léna Märie Waide and her hus-

band, Ray Waide for no consideration. That the said deed

This case was tried in the Cireuit Court of Brown

County and heard before the Master in Chancery, Joseph

. Morton. A report of the Master was made refusing

to grant any relief -to the plaintiff and a decree was

granted affirming the Master’s report by the Circuit

Judge. i

This case was appealed to the Supreme Court of Illinois

‘and there affirmed. From this opinion of the said Supreme

Court of Illinois this Writ of Certiorari is presented to

the Supreme Court of the United States.

m for Writ of Certiorari to the Supreme Court

„This is a Petition for a Writ of Certiorari to the United

States Supreme Court to the Supreme Court of the State

of Ilinois and Brief in support of same. |

1. Opinion of the Supreme Court of the State of Ili

3. Questions

3

* Opinion of the Supreme Court of Illinois.

5 Go. 33146.—Deeree ee affirmed.) — 5 8

Sn H. Beusenns, Appellant, vs. Lena Mam Waive

ee fs et al., Appellees. b

55 Opinion filed May 24, 1954—Rehearing denied July 13, 1954.

t Arnd. from the Cireuit Court of Brown County; the

Hon. Fund G. Wore, Judge, presiding. 3

J. W. Temptemax, of Springfield, for appellant.

BxLarri, ARNoip & Fay, of Jacksonville, for appellees.

MI. Justice Fuurow delivered the opinion of the court:

_ This is an appeal from a decree of the circuit court of

Brown County, dismissing for want of equity the com-

plaint herein which sought to set aside a deed from appel-

lant to her daughter, Lena Marie Waide. A freehold being

: involved, the appeal comes directly to this court.

The appellant, Syble H. Behrends, filed her complaint

in chancery in the circuit court of Brown County alleging

that on October 7, 1950, she was the owner of a certain

45 acres of real estate. The complaint stated that in reli-

anoe upon fraudulent representations made to the appellant

by the appellees, her daughter and son-in-law, that she was

to sign a document to obtain new eyeglasses, she exe-

ented a quitelaim deed for the premises in question to her

daughter; that she was 80 years of age; that her eyesight

vas poor and that other arrangements had been previously

made for the descent of said real estate. A copy of the

quitelaim deed was attached to the complaint and made a

part thereof which showed the conveyance to have been

made on October 7, 1950, and that the grantor reserved

nto herself a life estate therein.

Subsequently, the appellant filed an amendment to her

complaint by which she added a second count alleging that

on October 7, 1950, she was induced by the appellees to

make a trip to Jacksonville, Illinois, to consult an optician

in regards to her eyes; that after said examination she

was taken to the office of attorney Foreman who had in

his possession a prepared deed and will which he told her

to sign and which she did sign without any information

from. said attorney as to the contents or meaning of said

documents. She farther alleged that because of her poor

eyesight she was unable to read and that upon leaving the

attorney’s office she took the deed and will home and there

she requested the defendant, Lena Marie Waide, to deliver

them to the banker to be placed in her safety-deposit box.

By her amendment appellant claimed the deed to the prem-

ises in question was never delivered to her daughter for

recording but that the same was in fact recorded by her

against the will of the appellant and without her consent.

The complaint and amendment thereto prayed that the deed

in question be set aside and declared null and void. An-

swers were filed by both appellees and issues were there-

upon formed upon the question of fraud claimed in the

original complaint and upon the question of delivery as

framed in the amendment. The cause was then referred

to a master to take testimony and to report his conclusions.

The oral and documentary evidence presented before

the master tended to show that on February 28, 1920, the

appellant, Syble Behrends. In the year 1948, Tonie K.

JV ͤ ͤ ͤ ꝗ ꝑꝑ VVV tS ae ES ge ER

a

—

Paragraph Fifth of the will devised the 45 acres in ques-

estate and then directed“ that she pay to my son, Leo H.

: Behrends the sum of Two Thousand Dollars ($2,000.00)

within six months of the death of my said wife, or within

six months of my death if my said wife fails to survive

me. On May 24, 1950, Tonie K. Behrends died and there-

_ gfter his will was admitted to probate. The record con-

tains many incompetent remarks of witnesses and there is

the usual amount of contradiction as to immaterial matters.

on the main issue in the case, namely, the circumstances

under which the deed executed on October 7, 1950, was

handed from the appellant to the appellee Lena, there is

also contradictory testimony. Briefly stated, the testimony

of the appellant was to the effect that she believed the

appellees drove her to Jacksonville for the sole purpose

of obtaining new glasses, Afterwards they took her to

the office of attorney Foreman, whom she did not know.

He told her to sign the deed in question and a will without

reading or explaining either of the documents to her.

Appellant stated she was unable to read and that at the

time of testifying before the master she did not know the

- gontents of either document. On the way home from the

attorney’s office, she said she handed the papers to her

daughter with the directions to take them to the banker

The testimony of the appellees on the question of de-

livery was, in substance, that the appellant handed the

deed and will to Lena and told her that the deed was hers

and not to worry about it and to leave the will with the

banker to be put in the safety-deposit box. The appellant

—§—

the appellant to Lens. The fact that the deed had been

appellant, for she reiterated on both direct and cross-ex-

death just as her husband had provided in his wil.

Attorney Foreman was called to testify on bebalf of

the appellees, and, over objection, ‘he testified concerning

the conversation with the appellant in his office. He also

stated he questioned appellant in the presence of his secre-

tary as to the manner in which she wished to leave her

property by will. The secretary recorded the questions and

answers in shorthand, and a transcription of the same was

read into the evidence. The secretary was called to testify

from her shorthand notes as to the same inquiries and

responses thereto. It is unnecessary at this point to exam-

ine the testimony in closer detail or to discuss the testimony

of other witnesses. |

Following the hearings before the master but. before

the filing of the master’s report, the appellee’s filed an

amendment to their answer in which they set forth the

conveyance of the 45 acres from Tonie K. Behrends to

the appellant in 1920; the fact that he died testate on

May 24, 1950 leaving a will the provisions of which have

been heretofore discussed; and that the title to the property

in dispute had become vested in the appellee Lena Marie

Waide by reason of the acceptance by the appellant of the

provisions of said will and her failure to renounce the same.

The amendment prayed that the complaint be dismissed

for want of equity. Objection was made to the filing of

then pending before the master in chancery, that it con-

stituted a separate suit and that other parties who were

not joined in the present suit were interested in the on-

a oe

d traction of said will. Subsequently, a reply was filed to

dhe amended answer asking that it be stricken.

_ testimony of Attorney Foreman was competent; that no

_ frand was shown; that appellant failed to prove the alle-

gations of her complaint and amendment thereto by the

greater weight of the evidence; that said deed was in the

nature of a voluntary settlement; that the acts of the

appellant in connection with the administration of the

estate of Tonie K. Behrends did not constitute an election

‘to surrender the remainder after her life estate and have

the same pass under the will of Tonie K. Behrends; that

Lena Marie Waide is now seized in fee simple of the title

to said real estate under said deed subject to the life es-

tate of the appellant; and that the equities were with the

_ appellees.

The master further found from the evidence that the

appellant, Syble H. Behrends, in the fall of 1950, paid to

her son Leo R. Behrends the sum of two thousand dollars

($2,000.00), which corresponds, in the amount, with the

sum Leo was to receive from Lena Marie Waide under

the will of his father, Tonie K. Waide, deceased ; that she

did not give to either of her other children a sum of money

comparable to the amount she gave Leo, and that a fair

inference would be that this payment indicated a desire on

the part of the appellant to carry out the terms of her hus-

band’s will.

It seems strange that on appeal appellant should argue

that the weight of the evidence would support a finding

that she had elected that the property pass under the will

ol her deceased husband, for it would appear that, if this

be so, any reason for setting aside the quitclaim deed

ides

to Lena: is eliminated, since the fee title was: lodged in

Lena by virtue of the will.

The court found that the findings and conclusions of

the master were fully supported by the evidence and by

the law and entered a decree approving same and dismissed

the complaint for want of equity.

~The decree of the circuit court of Brown County is

therefore affirmed.

Decree affirmed.

= oe

II.

Jurisdiction.

Jurisdiction is predicated on said facts and the law

applicable to the trial of this case in the Courts of the

State of Illinois.

This suit was a suit by plaintiff to set aside a deed for

fraud and non-delivery to defendants, consisting of two

Counts.

The defendants Waides are a daugther and a son-in-law

of plaintiff’s, who obtained the deed under the following

circumstances.. The defendants went to Jacksonville to a

lawyer by the name of Orville N. Foreman in Morgan

County, and consulted him relative to a deed from plain-

tiff. A deed was prepared on September 14, 1950 by said

Foreman and completely filled out even as to the acknowl-

edgement by said Foreman as a Notary Public for said

45 acres of land owned by plaintiff, Behrends. This deed

was delivered to Waides to obtain the signature of Syble

H. Behrends on the deed as she owned it. This was all

done by and in the office of said Foreman who had never

seen Syble H. Behrends.

The Waides took the deed and left the office of said

Foreman but never obtained the signature to said deed.

On October 7, 1950, the Waides took plaintiff to Jackson-

ville, Illinois, to get some glasses as she could not see

to read. The defendant daughter of plaintiff took plain-

tiff into Foreman’s office where for the first time plain-

tiff met and saw said Foreman and there plaintiff signed

the deed that had been prepared on September 14, 1950,

by Foreman. Plaintiff could not read the deed and Fore-

man did not read the deed to her. She took the deed and

a Will which had been drawn by said Foreman, paid

Foreman $15.00 by check for the legal services rendered.

„

She took the deed and Will home with her and gave them

to the daughter, Lena Marie Waide, a defendant herein,

with the directions to deliver the deed and Will to the

bank where she, plaintiff had a safety box and to place

them in said box.

The defendants filed an answer to said complaint,

which contained two Counts, one based upon fraud, the

other charged non delivery of said deed.

The case was referred to Joseph R. Morton, Master

in Chancery, appointed by the Cireuit Judge of Brown

County, Illinois, to make and report his findings on the

law and facts applicable to the same in this case. The

case was referred to said Master on January 5, 1952

(Abst. 8). Most of the testimony was taken by the Mas-

ter on different days and hearings.

On April 13, 1953, the defendants filed what they

termed an Alternative Defense to plaintiff’s cause of ac-

tion (Abst. 8-10).

A motion was filed to strike and dismiss this Alterna-

tive Defense by plaintiff (Abst. 11). This suit was pend-

ing before the Master. He at that time had jurisdiction

of the case and for the Circuit Court to get and have

jurisdiction for any purpose it was necessary under the

law to have the case referred to the Circuit Court. Also

new matter was brought in not germane to the suit and

new parties and none were served nor did any party

enter his appearance (Abst. 11). Exhibit A, record of

Circuit Court 399. This deed was acknowledged by said

Foreman and set forth in said acknowledgment that

Syble Behrends was present and signed the deed. The

facts were disclosed by both defendants and Foreman

that the petitioner had never seen Foreman nor was she

present.

tine

The Plaintiff’s evidence abstract in the record, Page

abstract Page 13, Syble H. Behrends went to Jackson-

ville, with defendants haven't been able to read for 2

years, then to the Lawyers office, where he had a type-

written paper. It was not read to me, I did not know

what was in it, He (the lawyer) told me to sign it. I did

I paid him $15.00 Dollars, I gave the two papers to my

daughter on our way home to put in my bank box. She

said she would. She had the deed recorded. I did not

give the deed and will to her to record, no delivery for the

purpose of recording. Deed admitted in evidence (Abst.

18). dated 7th day of September A. D., 1950.

See of the evidence in the Record certified by the Cir-

euit Clerk of Brown County, Illinois. iets

The abstract of the evidence is in the Record of the

Clerk of the Supreme Court, Page 3 Abst. Exhibit (one).

The Fraud in making a deed certifying that the grantor

Syble H. Behrends was present when in fact Orville

Foreman had never seen plaintiff, the grantor, nor did

he change the acknowledgment in the deed, from Septem-

ber to October, when Syble H. Behrends was in his office.

Exhibit A record of Circuit Court 399. This deed was

acknowledged by Foreman and set forth in said acknow-

ledgment that Syble H. Behrends was present and signed

the deed. The facts were disclosed by both defendants

and Foreman that, the petitioner had never seen, nor

was she present when Foreman prepared the deed. The

deed was delivered to the defendants, Waides by Orville

N. Foreman with instructions. The defendants left with

the deed prepared for the signatures of the petitioner,

Syble H. Behrends. This plan was the beginning of the

212

fraud to obtain a deed to the property by defendants,

Waides. N

In the petition for a rehearing there appears the

testimony of Ray Waide, one of the defendants in ques-

tions, and answers, This witness admitted that he made

a false statement before the Commissioner when he

testified. Ex. Petition for Rehearing (page 12), Page 2

Rehearing.

The other testimony of the other witnesses reaffirm the

testimony of the plaintiff as disclosed by the Abstract of

Plaintiff (Ex. 3 record in the Files).

The Fraud in making a deed certifying that the grant-

or, Syble H. Behrends, was present when, in fact, Orville

Foreman had never seen the said Plaintiff, Syble H.

Behrends, nor did he change the acknowledgment in the

deed from September to October, when Syble H. Beh-

rends was in his office.

8

m.

The Federal question raised is in the filing of Alter-

native Defense to Plaintiff’s cause of action”, when the

her Reply. (Abst. 12).

And the same question was presented to the Supreme

Court. The fraudulent securing and taking the property

without these parties and the issues raised is taking

property without due process of law. The whole issue

raised by this false issue was the issue tried by th

Courts. The Supreme Court ignored the question and

passed upon this false issue. The Court ignored the same

question raised in the Petition for Rehearing. The

Supreme Court ignored the constitutional questions

raised by the Plaintiff and decided the case on the false

issue raised by the Alternative Defense. Nowhere in

the opinion does the Supreme Court mention the real

question involved in the case.

Petition for Rehearing, Page 4, Par. 2.

Warren v. U.S., 340 U.S. 523.

Aguilar v. Standard Oil Co., 318 U.S. 724.

Lichter v. L. S., 334 U.S. 742-66-68. a

Also Gressman Supreme Court Practice - 1950.

2.

he trial court considered matters which were not ger-

mane to the issues and without proper parties to the suit.

A. The additional defense filed was not germane

to the issue of the delivery of the deed in question.

B. All persons interested in the subject matter

of the suit should have been made parties.

Georgeoff v. Spencer, 400 Ill. 300, 302.

London & Lancashire Indemnity Co. v. Tindall,

377 Ill. 308, 315.

C. It was error for the trial court to hold that

plaintiff had made an election not to have the prop-

erty in question pass under the Will of Tonie K.

Behrends. : :

Oglesby v. Springfield Marine Bank, 395 III. 37,

62.

Palenske v. Palenske, 281 III. 574, 578.

Martin v. Casner, 383 Ill. 260, 265.

pa We

The of the evidence was contrary to the trial

doourt's that the deed was delivered.

a , A. Question of delivery is one of both law and

act. N

Creighton v. Elgin, 387 III. 592, 604. ü

Elliott v. Murray, 225 III. 107, 112.

B. Giving manual possession of a deed to the

grantee to take it to another on behalf of the grantor

is not a delivery of such deed.

Rothenberg v. Rothenberg, 378 III. 242, 247.

C. Mere manual possession of a deed by a grantee

is not necessarily an acceptance thereof.

Seibert v. Seibert, 379 Ill. 470, 478.

Elliot v. Murray, 225 III. 107, 113.

D. Mere fact that a deed has been recorded, is,

of itself, only prima facie evidence of delivery.

Creighton v. Elgin, 387 III. 592, 604.

4.

The testimony of Orville N. Foreman was incompetent.

Orville N. Foreman’s testimony was not competent

against his client, the plaintiff. An objection to his testi-

mony on the ground it involved privileged communica-

tions, was duly made at the beginning of his testimony

and a motion to strike it was made at the end of his testi-

mony. In addition, the objections to his testimony ran to

each and every question and answer (Abst. 19, 23). The

following facts are proof that his testimony concerned

privileged communications: Plaintiff was his client at

the time (Abst. 23); she paid him for his services ( Abst.

22); no one else was present (Abst. 22); he advised plain-

tiff on her Will, the deed in question and the Will of her

husband (Abst. 20, 21); she at no time released Foreman

—16—

to testify (Abst. 26). Under this state of facts, I

man’s testimony was incompetent.

In Re Estate of Busse, 332 Il. App. 258, 266.

Foreman ‘testified he received no compensation from

plaintiff for drawing the deed in question. Whett

Foreman received compensation or not makes no dif

ence.

Dickerson v. Dickerson, 322 Tl. 492, 499.

Conclusion.

—

It is therefore urged that the Writ of Certiorari De

granted in this esse, as I feel quite sure every right ¢

the plaintiff has been violated including her Constitutio |

rights, evn more than due process of law.

All these points were raised by proper motions 4i

objections before the master and before the Cireuit

and before the Supreme Court of Illinois.

Respectfully submitted,

J. W. Trax, :

Attorney at law and a mem

of this court since March 26th