
    Janet Wiebrecht, Plaintiff-Appellee, v. Louis Shapiro, et al., Defendants-Appellants.
    (No. 54980;
    First District
    — October 19, 1971.
    
      Ordower & Ordower, of Chicago, for appellant.
    Allan L. Blair, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendants appeal from a decree setting aside certain deeds to real estate and contend:

(1) A finding of fraud cannot be based upon a nondisclosure of a fact that is of public record where there has been no misrepresentations, a fiduciary relationship or where by due diligence the fact could have been ascertained.

(2) A court of equity cannot enter a decree that does not conform to the complaint and affect the rights of a person not a party to the suit.

On July 26, 1968, the law firm of Blair & Buyer filed the instant suit purportedly on behalf of Elizabeth Farmer and Janet Wiebrecht against defendants requesting reformation of a deed and other relief.

On October 8, 1968, the court entered an order upon motion of defendants which provided that Farmer be dismissed as a party plaintiff pursuant to her request and affidavit. The order further provided that plaintiff Wiebrecht be given leave to file an amended complaint.

Plaintiff’s amended complaint consisted of two counts. In Count I she alleged that Farmer owned certain parcels of real estate located in Chicago, Illinois, hereinafter referred to as Lot 40 and Lot 56; that on or about June 22, 1967, Farmer conveyed Lot 40 to plaintiff for the sum of $50.00; that the deed was lost or misplaced after delivery before being registered in Torrens, and that subsequently, on July 5, 1968, Farmer again executed a deed to the property in favor of plaintiff for the sum of $35.00.

It was further alleged that on or about July 18, 1968, defendant Louis Shapiro offered to purchase Chicago real estate from Farmer; that after she told him that the real estate had been sold, he assured her that the parcel he desired was not the one already sold; that Farmer, a 64 year old widow, was unfamiliar with legal descriptions and did not read or understand the documents Shapiro asked her to sign; and that based upon Shapiro’s assurances she signed the documents which purported to convey Lot 40 to Hannah Ziman. (Nominee of Shapiro).

It was further alleged that Farmer did not deliver a copy of the duplicate Torrens Owner’s Certificate to either defendants Shapiro or Ziman, nor was she aware of its existence; that on or about July 19, 1968, defendants Shapiro and Ziman registered their deed and surrendered the duplicate Torrens certificate for cancellation representing Lots 40 and 56; that it was Farmer’s intention to sell defendants Shapiro and Ziman Lot 56 and not Lot 40, which had already been conveyed to plaintiff; and that defendants Shapiro and Ziman at all pertinent times were aware of Farmer’s deed to plaintiff.

Based on the foregoing allegations plaintiff prayed that the deed from Farmer to defendant Ziman be set aside; that in the alternative the Registrar of Titles be ordered to issue a new certificate to plaintiff regarding Lot 40; and that Farmer’s deed to plaintiff be accepted for application and registration with a certificate to issue.

Count II of Wiebrecht’s amended complaint realleged much of the matter of Count I and also alleged that defendant Shapiro’s actions constituted a fraud upon plaintiff and that malice was the gist of the action.

Based upon the allegations of Count II plaintiff prayed that she be reimbursed in the amount of $5,000 for the damage suffered and that punitive damages be awarded in the amount of $25,000.

Defendants’ answer to plaintiff’s amended complaint admitted that Farmer was formerly owner of Lot 40; that defendant Shapiro went to Farmer’s home and offered to purchase Lot 40; that Farmer did not physically deliver a copy of the duplicate owner’s certificate; and that they recorded the deed and surrendered the owner’s certificate for cancellation.

Defendants’ answer denied that they misled Farmer; that defendant Shapiro made any promises, representations or assurances; that Farmer could not read or understand the documents submitted by defendant Shapiro; and that Farmer did not know how they came into possession of the owner’s certificate. Defendants further denied that Farmer intended to convey Lot 56 rather than Lot 40 to defendant Ziman; that defendant Shapiro misled or misrepresented the parcel covered by the deed; that they were aware of Farmer’s conveyance to plaintiff; and that defendant Shapiro’s actions constituted a fraud.

ELIZABETH FARMER testified at an evidence deposition:

She is the person alleged to be owner of Lot 40 if the records reflect it. It appears that her signature is affixed to Plaintiff’s Exhibit #1 (the deed from Farmer to defendant Ziman, dated July 19, 1968, and filed the same day). The records would show if she ever executed any deeds to plaintiff. She has no recollection. Richard Cohen of Chicago (representing plaintiff) sent her something which was to be signed, but she does not know if it was a deed or what the document was, but she was given some money for signing it. After signing this document it was returned to Cohen. She has no recollection as to when it was signed, but it was more than a year ago. Cohen later called, and said something to the effect that the original deed had been misplaced or not received, and wanted her to execute it again. She did not read it when she signed, but she did go to a notary public to have it notarized. Plaintiff’s Exhibits #2 and #3 appear to be the document she referred to signing on the second occasion and would say it was signed on that date. It appears to be in the same condition. It was signed before a notary public and maffed to Cohen.

After this, Shapiro contacted her, but she could not remember the date. It was sometime after signing the deed, less than a month later. Shapiro telephoned her and said he wanted to buy certain land in Chicago. She advised him that it had been sold and she had recently given a second deed, because the first had been lost or misplaced. It could possibly be true that the lot referred to was number 40, but she did not know the number of the lots in Chicago. She did not tell him that she could not sell it to him again. Shapiro asked to come down but she advised him not to because she felt the lot had been previously sold. He came anyway within two days. He arrived and called at the house. They had a short conversation and he asked that they go before a notary public to have the paper notarized. He was told that the lot had been sold, but he assured her that it was another lot. She was not allowed by Shapiro to read the document. He told her he would send her a copy, but he never did so. There was more than one paper he had her sign, but she could not recall if one of them was a 4 X 6 yeHow card. Shapiro was never authorized to pick up a Torrens certificate at the Torrens office in Chicago. She did not know of the existence of such certificate. She had never seen one. She never looked for a certificate because she never had one. Plaintiff’s Exhibit #4 (affidavit of lost Torrens certificate) bears her signature and apparently was one of the documents she signed for Cohen when she returned the deed. She never saw a certificate, and never authorized anyone to pick it up.

Shapiro was in a hurry, because he was going to make another visit. He never gave her time to consult with an attorney. There was not very much said. She did not know what she signed for Shapiro. She never read it, but did tell him that she had already sold the lot. She had no recoUections about how many telephone calls she had from Shapiro. He was told that she had sold the lot and that she did not want to sell it twice. On the telephone and in person he was told.

They went to a notary public and she was asked to sign the documents, which she did, but they were not read by her. Shapiro said it was not necessary.

She had no knowledge of what property she owned in Chicago, but some of it involved other heirs with her. After signing, Shapiro wanted to know what other property she had in Chicago, but she told him she did not know. Shapiro took her photographs of property in Chicago and advised her that he would return them. They had been in a shoe box at her home. When they were brought out, Shapiro took them from her hand and placed them in his briefcase teUing her that he would let her know if he was interested in any other Chicago property.

She had no idea of how many documents she signed at the time Cohen asked her to execute a second deed to Lot 40. As far as she knows, she did not sign a quit claim deed in duplicate for Cohen to Lot 56. Defendants’ Exhibit #1 (copy of a quit claim deed from Farmer to Cohen conveying Lot 56, not dated, but with an acknowledgment dated July 5, 1968) appears to bear her signature, but she had no recollection of signing it.

Shapiro never said that she was entitled to any proceeds of a condemnation award and she had no recoUection of ever signing an assignment of that award to Cohen.

Defendants’ Exhibit #2 (assignment of a condemnation award from Farmer to Cohen, regarding Lot 56, dated July 5, 1968,) appeared to bear her signature, but there was no recollection of signing it. She could not remember if she told Cohen it was her intention to seU Lot 56 to Shapiro and she never told Shapiro that she intended to seU him any lot in Chicago. Plaintiff is unknown to her and she never had a conversation with Alan Schwartz or told him that she intended to seU Lot 56 to Shapiro. The first time she ever met Blair or Schwartz was at this deposition. It is possible that she spoke to Blair on the phone. After the deed was executed, they returned to her home and Shapiro gave her some consideration. The photographs show property she inherited and that is all she knew about it. She is of the opinion that she does not own anything and does not know Lot 40 or 56 and had not heard about the property in 30 (thirty) years.

She did not know if the subject of the litigation is Lot 40 on the deeds she executed for Cohen. She could not remember the contents of the letter of transmittal when she was asked to re-execute duplicate deeds in 1968. She did not read the deeds Cohen gave her to sign and had no knowledge of any condemnation award. Even if she had read the legal description, she would not know what it was all about. Cohen never mentioned any award.

Defendants’ Exhibit #4 (Torrens signature card) looks like it bears her signature but she could not remember signing it for Shapiro, nor how many checks he gave her or their amounts.

The reverse side of Defendants’ Exhibit #5 (negotiated check, Cohen to Farmer, dated June 27, 1967, for $50.00) appears to bear her signature as does Defendants’ Exhibit #6 (negotiated check, Cohen to Farmer, dated June 28,1968, for $35.00).

Donald L. Wood was her attorney and he would have to be asked if she authorized a lawsuit to be filed in Chicago. She is not suing anyone and is not going to answer any more questions about other pieces of property. Lot 56 may be presumed to be in one of the photographs Shapiro took with him. She did not know or remember if anyone contacted her about plaintiff, whether Cohen contacted her again or Blair and Buyer. She and Shapiro at her direction went to the bank to have the documents notarized because she did her business there. Shapiro did not want to go to the bank, but asked if there was a notary in the neighborhood.

She told Blair on the telephone that Wood had authority and instructions to represent her on this matter and to take whatever action Wood thought necessary. She told Wood that she was not interested in anything in Chicago and to get the damned thing over with. After she executed the deed for Shapiro, they discussed the other property. After this lawsuit was filed. Shapiro telephoned her, but he did not badger or threaten. She had no recollection of what he said to her.

In a memorandum ruling the court recited that both plaintiff and defendants were well aware of Farmer’s lack of knowledge in real estate matters; that Farmer was not informed by any of the parties or their agents of the pending condemnation proceedings affecting the property; and that the withholding of this material fact made the other representations to Farmer misleading and consequently fraudulent.

The court further noted that there was no fraud upon plaintiff, but that Farmer was the victim of defendant’s fraud; that since neither plaintiff or defendants had come into court with clean hands, relief should be denied both parties; and that if plaintiff were denied relief because of the application of the provisions of the Torrens Act without further action of the court, defendants would be left to enjoy the fruits of their fraud.

The court then entered an order which provided in its pertinent parts:

“This cause coming on to be heard on the amended complaint of Janet Wiebrecht and the answers thereto of Hannah Ziman and Louis Shapiro, this Court having heard testimony and argument of counsel and having examined exhibits and being fully advised in the premises,
1. Under Section 42 of tire Torrens Act, no person taking a transfer of registered land shall be affected with notice of any unregistered claims or deeds and, accordingly, under the said Torrens Act, plaintiff is barred from the relief she seeks in this case.
2. Defendant, Louis Shapiro, committed fraud upon Elizabeth Farmer in procuring a deed from her to his nominee, Hannah Ziman, for the following described property, to wit:
(legal description)
3. General equitable principles require the deed from Elizabeth Farmer to Janet Wiebrecht for the above described property to be set aside upon reimbursement of expenses in procurement of said deed, excluding attorney’s fees.”

The court then ordered the deeds from Farmer to defendant Ziman and plaintiff to be set aside pursuant to its finding.

OPINION

Defendants contend that the trial court erred in basing its finding of fraud upon nondisclosure of a fact which was a matter of public record where the evidence disclosed no misrepresentation nor fiduciary relationship.

While defendants take issue with the trial court’s reasoning, it has been widely held that the issue on appeal is not the insufficiency of the lower court’s reasoning, but rather the correctness of its ultimate decision. Dvorson v. City of Chicago, 119 Ill.App.2d 357.

The trial court’s findings in its order were prefaced by the following language:

“This Court having heard testimony and argument of counsel and having examined exhibits and being fully advised in the premises * *

However, no transcript of proceedings appears in the record on appeal. In Skaggs v. Junis, 28 Ill.2d 199, 201, the court stated:

“The court stated that its order was based upon ‘the Court having heard the evidence and argument of counsel and being fully advised in the premises.’ In such a situation, unless there is a contrary indication in the order or in the record, it is presumed that the court heard adequate evidence to support the decision that was rendered. (Smith v. Smith 36 Ill.App.2d 55). Where it is alleged that the evidence presented was actually insufficient to support the court’s finding, the burden of presenting such evidence rests with the party who appeals from said order. No record of the evidence heard * * * is before the court and, therefore, it is assumed that the evidence that was fully heard supported the court’s finding * *

The fact that the comt’s reasoning in the present case might have been improper gives no indication that the court did not have adequate evidence to sustain a finding of fraud. Therefore, without the transcript of proceedings this court on appeal has no sufficient basis from which to determine the correctness of the trial court’s ultimate decision and it must be presumed that the evidence heard supported the trial court’s findings.

Defendants next contend that the trial court erred in entering a decree which did not conform to the prayer of the complaint and in granting relief to a person not a party to the suit. However, plaintiff maintains that such relief was well within equitable principles.

Plaintiff’s amended complaint recited certain acts of defendant which were alleged to be fraudulent. Upon those allegations rested plaintiff’s prayer for relief which requested that the conveyance from Farmer to defendant Ziman be set aside; that the deed from Farmer to plaintiff be accepted for registration with an owner’s certificate of title to issue to plaintiff; that in the alternative money damages be awarded; and that the court grant any further relief as may be necessary in accordance with the facts set forth in the complaint.

The trial court found that defendants were guilty of a fraud upon Farmer and that plaintiff aided in the perpetration of the fraud. Additionally, the trial court found that the defendants committed no fraud upon plaintiff. We have already held that it must be presumed that these findings were supported by the evidence.

In First Trust Joint Stock Land Bank v. Cutler, 293 Ill.App. 354, the court stated at page 363:

“It is a settled rule that a decree must conform to the allegations in the pleadings as well as to the proof in the cause and the prayer of the bill, and relief must be granted on the theory of the complaint, or not at all.”

In the present case the trial court initially applied its findings by denying plaintiff relief due to her misconduct with regard to the series of real estate transactions which constituted the subject matter of the suit. However, the trial court noted that to completely deny plaintiff relief without further judicial action would allow defendants to enjoy the fruits of their fraud due to the provisions of the Torrens Act. In accordance with this observation the trial court ordered the deed from Farmer to defendant Ziman set aside. In so ordering the trial court also felt constrained to set aside the deed from Farmer to plaintiff due to her misconduct.

We find the granting of such relief to be error. There is no dispute that if Farmer had participated in the cause as a party plaintiff and requested relief based upon the trial court’s finding of fraud that the relief granted would have been proper. However, Farmer voluntarily withdrew from the cause upon affidavit and disavowed any interest in the subject matter of the litigation. Therefore, the trial court was solely confronted with the controversy between plaintiff and defendants as set out in the amended pleadings and was similarly limited in its application of relief to the prayer of plaintiff’s amended complaint. First Trust Joint Stock Land Bank v. Cutler, supra.

Therefore, we reverse the judgment and remand the cause with directions to reinstate the conveyances from Farmer to plaintiff and defendants and place the parties in the position the court found them.

Reversed and remanded with directions.

LEIGHTON, P. J., and SCHWARTZ, J., concur.  