Mr. JUSTICE DAILY delivered the opinion of the court:
Appellee, Helen Klajbor, filed a complaint in the superior court of Cook County seeking a decree which would cause two deeds to be registered under the Torrens system, and title to the premises they conveyed confirmed in her as the surviving joint tenant of her husband, Anton Klajbor, deceased. Named as defendants were Frank B. Klajbor, and Frank Klajbor, the former being Anton's brother and the latter Anton's son by a previous marriage. The brother was defaulted from the action for failure to plead, but the
The record discloses that prior to Anton Klajbor's marriage to appellee, in November, 1932, he was a widower with one son, the appellant, and that he owned the real estate here involved, which is located in Chicago and improved with a four-apartment brick building. In March, 1937, Anton and appellee conveyed the property to a third party who immediately deeded it back to them as joint tenants. On March 4, 1940, Anton executed a quitclaim deed conveying all his interest in the premises to his son, the appellant. The record contains nothing as to the circumstances surrounding the execution of this deed. Appellant stated that he first knew of the deed when he received it from one Holleb, an attorney, in March, 1940; that he had no conversation with his father about the deed; that he paid no consideration for the transfer; and that on receipt of
Attorney Holleb was not called as a witness nor was his unavailability shown. When being cross-examined, appellant testified to a conversation he had with his father in 1946, at which time a divorce action was pending between his father and appellee. (Klajbor v. Klajbor, 398 Ill. 152.) At that time the father purportedly said that when he died he wanted appellant to hold and control his estate, saying: "You have been good to me so I think you are entitled to have something when I die." When opposing counsel further stated to appellant: "In other words he intended to have this property pass to you upon his death," the reply was: "Yes." We also note that although Anton Klajbor owned no other real estate than is here involved, he executed a will in April, 1947, bequeathing all his personal effects and household goods to appellant, and devising the balance of his estate, real and personal, to his brother Frank B. Klajbor in trust, with directions to sell the real estate within one year after the testator's death.
First of all, it is obvious that the three deeds on which the claims of the respective parties are based, were not registered under the Torrens system through inadvertence and lack of knowledge on the part of all parties that the property had been previously registered under that system.
A joint tenancy may be severed and the estate destroyed by a conveyance, voluntary or involuntary, of the interest of one of the joint tenants, and, the unity of title and interest being destroyed, the interest severed is changed into a tenancy in common. (Lawler v. Byrne, 252 Ill. 194; Spadoni v. Frigo, 307 Ill. 32.) However, it follows that such a deed by one of the joint tenants must be one which is intended to take effect at once if the result is to create a tenancy in common between the grantee and the remaining joint tenant. Appellee contends that the deed executed by her husband to appellant was not intended by the grantor to take effect until his death. If she is correct in this assertion, which we shall consider later, there was no severance of the joint tenancy and the grantor's deed would have no greater effect than if it were a devise of his joint interest by a will. It is elementary that where property is held in joint tenancy the joint tenant first dying has no interest which can be conveyed, the title of the coproprietor by survivorship taking precedence over the claim of a devisee or legatee, heir or administrator, as the case may be. Eckardt v. Osborne, 338 Ill. 611.
Thus it is that appellee does not, for any purpose, stand in the shoes of appellant's grantor. Her right is wholly
Appellant urges that the deed to him was made as a voluntary settlement, which requires no consideration, and that the presumption arises from the grantor having executed and recorded the deed, that it was delivered. It has been held that where a deed is made and recorded by the grantor with the object of effecting a voluntary settlement by the grantor of his real estate upon a grantee who stands in a near family relation and who is laboring under a disability, such as minority or mental incapacity, the presumption will obtain in favor of delivery, even though the deed may remain in the possession of the grantor and the grantee may not be aware that it has been executed and recorded. (Hill v. Kreiger, 250 Ill. 408; Wilenou v. Handlon, 207 Ill. 104.) This presumption does not arise, however, in favor of adult grantees who are not laboring under mental disabilities. (Wilenou v. Handlon, 207 Ill. 104; Baker v. Hall, 214 Ill. 364.) It is also the rule, however, that the presumption of delivery may be rebutted, and if it appears from the entire case that the grantor did not intend that
There is nothing in the record which indicates that appellant was under any legal disability when the deed of March 4, 1940, was executed. Likewise, there is nothing which affrmatively shows that it was the grantor's intention that the deed to appellant take effect upon its execution. On the other hand, there is much before us which indicates a contrary intent on the part of the grantor. By appellant's own admission, his father remained in possession and control of the property, collected the rents, paid the taxes and otherwise asserted his ownership of the premises. The statements attributed to the grantor in 1946, that he wanted appellant to hold and control his estate at the grantor's death, are not consistent with an intent to make the conveyance of March 4, 1940, immediately effective.
Appellant also advances the argument that he should not have been required to testify to remarks made by his father in their 1946 conversations because of the prohibition contained in section 2 of the Evidence Act. (Ill. Rev. Stat. 1947, chap. 51, par. 2,) This argument overlooks that both parties to this action are suing and defending as grantees under their respective deeds, and not adversely to the executor, heirs, legatees, etc. as described in the foregoing section.
The concluding contention of appellant is that appellee is guilty of laches and has unalterably changed appellant's position, to his detriment, by waiting until after the death of Anton Klajbor to bring this action. We note that Anton Klajbor died June 9, 1947, and this action was commenced three months later. As pointed out previously, it was not until the death of her joint tenant, that appellee was able to assert the right of survivorship which was created upon
The superior court was correct in confirming title to the premises in appellee, and in denying to appellant an interest therein. Its decree will be affirmed.
Mr. JUSTICE THOMPSON, dissenting.