Слике страница
PDF
ePub

the presence of appellee, and appellee said that she was glad of that; that, if they got that land, they would get all she had. The mortgage referred to was a mortgage executed by Samuel Smith in his lifetime, and the persons whom Wright went to Chester to see were the heirs of Samuel Smith, from whom he afterwards obtained deeds.

Thomas Qualls testified that he had known Ellis Wright for 40 years; that about 2 years ago he was out on Wright's farm on another 80 acres which is west of the land in controversy; that they were on the porch upstairs in a house known as "the mansion," and that Wright then said, "This is known as the mansion, and belongs to me," and then pointing eastward toward the 80 in controversy, said, "That over there belongs to my woman."

William Finn testified that he had known Ellis Wright for 40 years; that some 30 years ago he had a conversation with Wright in the Bower Hotel, at Ava; that Wright said to him, "Bill, you know these Crawfords?" Witness said, "Yes." He said: "They owed my wife, Lizzie, a lot of money, and I hear they are horse racers and gamblers and they might go broke, and I sent her over to tell them that I was going to put her money in land." On another occasion this witness testifies that Wright said he had paid for the land in controversy with his wife's money. This conversation occurred about 10 years before his death, and that he had a similar conversation seven or eight days before Wright's death.

Appellant introduced 17 witnesses, whose testimony may be summarized by a statement of the principal facts which may be regarded as established by their testimony. It is proven by the neighbors and acquaintances of Ellis Wright that he took possession of the 80 acres of land in controversy, cleared it up, and built a house worth $500 and a barn worth $200 upon it; that he had the land assessed in his own name, and paid the taxes thereon from the time he bought it until his death; that he rented or leased parts of this tract at different times to different persons and collected the rents; in short, that he exercised all of the usual acts of ownership over the land, and that he frequently spoke of it as his land. Some of the witnesses testify that he spoke of the land as his land in the presence of appellee, and that she did not correct or contradict her husband's statements. One witness testifies that he tried to buy a strip of the land in question from Mr. Wright, and that he said: "We will go down and look at it," and that his wife was present but made no objection.

Appellant introduced some evidence for the purpose of proving that Mary Richards was not at the home of her sister at the dates mentioned by her in her deposition when she testifies to having heard the several statements of Ellis Wright deposed to by her. While this class of testimony had some tendency toward weakening the evidence of Mary Richards, it cannot be said that she was impeached to such an extent as to render her testimony unworthy of consideration. Most of the witnesses who were introduced to meet the deposition of Mrs. Richards

by showing that she was not at the Wright home at the several times when she claims to have been there only go to the extent of saying that if she was there they did not see her, or that they have no recollection of her being there on those occasions; and several of them admit, on cross-examination, that they had no special reason for remembering whether Mrs. Richards was there, and that she might have been there without their knowing it.

It was further shown on behalf of appellant. that he and appellee were appointed joint administrators of Ellis Wright's estate; that appellant and J. J. Pearson went to appellee's home and made an inventory of the real and personal property belonging to the estate. The land in controversy in this suit was listed in the inventory, and the inventory was sworn to by appellee, but not by appellant. This inventory was never filed, for some reason, in the county court, but was introduced on the trial of this case as an admission against appellee. It is shown that appellee is past 60 years of age, that she has no education, and that she signed the inventory by her mark. The evidence shows that when appellant and Pearson were making up the inventory they called for the deeds, and appellee brought them a package of deeds showing title in Ellis Wright to 490 acres of land, including the 80 in question. It is also shown that appellee was a quiet, timid woman, and acted in the presence of her husband as though she was afraid to antagonize him in any way; that she never interfered in conversations between her husband and other persons.

Appellant contends that, to establish a resulting trust in this case, it must be proven by clear and convincing evidence, not only that appellee furnished the purchase money and that the deed was taken in her husband's name, but also that the parties intended that a trust should be created at the time of the transaction. All the cases agree that, where a man pays for land and causes it to be conveyed to his wife or child, the presumption is that it was intended as an advancement or gift. Reed v. Reed, 135 Ill. 482, 25 N. E. 1095; Pomeroy's Eq. Jur. § 1041. The inference which the law permits to be drawn in this class of cases is based upon the common knowledge and experience of mankind in regard to the motives that usually accompany transactions of that character. Where there is a legal obligation resting on the one furnishing the consideration to support the person in whose name the conveyance is taken, it is said in some of the cases that the law will infer an intention to make a gift or an advancement, and that, to establish a resulting trust, the transaction must be attended by circumstances that negative this inference, or, as it has sometimes been expressed though not with entire accuracy, by circumstances showing an intention to create a trust. The intention of the parties to create a resulting trust is not necessary to its existence. A constructive trust often arises where the beneficiary not only does not intend to create the relation but has no knowledge of its existence at the time.

All of the cases relied on by appellant in support of the proposition

that, where the transaction is between members of the same family, it is necessary to show something more than the furnishing of the purchase money by one and taking the title in the name of another, are cases where the person paying the consideration was under a legal or moral obligation to maintain the person to whom the conveyance is made. No case is cited, and we have been unable to find any, which holds that, where the wife furnishes the purchase money and the deed is taken in the name of the husband, a presumption of a gift or an advancement arises. There is a clear intimation in Francis v. Roades, 146 Ill. 635, 35 N. E. 232, and Madison v. Madison, 206 Ill. 534, 69 N. E. 625, that no such presumption exists. The reason upon which the presumption rests where the purchase money is furnished by one who is under a legal obligation to maintain the person in whose name the deed is taken does not apply where the wife furnished the consideration for a deed taken in the name of her husband.

The evidence in this record satisfactorily shows that appellee furnished the entire purchase money for the land in controversy, and that the deed was taken in the name of Ellis Wright, and, since it is not necessary that the evidence should show anything in addition to these two facts in order to raise a resulting trust, it follows that the decree below directing the conveyance to appellee is free from error, unless appellant's contention that appellee is barred by laches can be sustained. In determining whether appellee should be deprived of a remedy in equity on account of the delay in bringing this suit, circumstances tending to explain or excuse such delay should be considered. It is to be noted in this connection that there was no adverse possession in her husband and the occupation of the premises was joint. The intimate relation between husband and wife, and in this case her inability to read and write and her confidence in her husband's repeated promises to convey the title to her, are all proper to be considered in determining whether the defense of laches should be allowed to prevail. In Ryder v. Emrich, 104 Ill. 470, 474, this court said: "It is also urged that the great delay in asserting their rights, having waited until after their father's death, is evidence that the claim of appellees is fictitious. It seldom occurs, as experience teaches, that a child sues a parent, whatever the wrong or the right of recovery, and, when it is done, so unnatural an act renders the child odious to the community. It would not, therefore, be expected that they would have sued him, however just their claim." The foregoing language is applicable to the situation presented by the facts in the case at bar. No inference that the claim set up by the appellee is unfounded or fictitious can be drawn merely from the fact that she did not bring a suit against her husband to compel a conveyance and thus break up or disturb her family relation. We think that under the circumstances shown by this record appellee was not barred, by a mere lapse of time, from maintaining her cross-bill.

Finding no reversible error in the record the decree of the circuit court of Jackson county will be affirmed. Decree affirmed.

[ocr errors]
[merged small][subsumed][ocr errors][ocr errors][merged small][merged small][merged small][merged small]
[ocr errors]

SHALER et al. v. TROWBRIDGE et al.

(Court of Errors and Appeals of New Jersey, 1877. 28 N. J. Eq. 595.)

VAN SYCKEL, J. In January, 1865, Joseph A. Trowbridge, Brainard Shaler, John Kiersted and Wynkoop Kiersted entered into partnership in the leather business, which was terminated by the death of Trowbridge December 14th, 1869. During its continuance Trowbridge had charge of the books and finances. The contested question on this appeal is, whether certain real estate and certain policies of life insurance, to which Mary E. Trowbridge held the legal title at her husband's death, should be decreed to be in equity the property of the firm. The evidence shows that Trowbridge alone drew the firm's checks, and exclusively managed its money affairs, and that the yearly balance-sheets, made up and presented by him to the firm, were false and fraudulent. Checks of the firm to the amount of $103,155.97 were drawn by him to his own individual use, and paid at the bank, none of which were either included in his yearly balance-sheets, or charged to him on the books of the firm. At the same time the amount drawn by him during the existence of the partnership, and actually charged to his accounts, exceeded what he would have been entitled to, by the articles of co-partnership, by more than $15,000; so that, upon an adjustment of the partnership concerns, he will be indebted to the firm in more than $118,000.

Out of the moneys drawn upon the uncharged checks, or by the checks themselves in some instances, Trowbridge paid for the real estate and the policies of insurance now in controversy. The policies were issued, in the first place, in favor of Trowbridge himself, and the half-yearly premiums paid by the uncharged checks of the firm to the insurance company's agent. In April, 1868, they were changed, by Trowbridge's request, so as to be payable to his wife, who, after her husband's death, received the several amounts due upon the policies from the insurance companies. Upon this statement of facts, which the case satisfactorily establishes, shall the real estate and the proceeds of the policies, be declared to be held in trust by the wife as the property of the firm?

8 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 198-201. The opinion of the master is omitted.

This is not a case of resulting trust, where the trust results, or is implied, from the contracts and relations of the parties. It arises, ex maleficio, out of the active fraud and dishonest conduct of the partner Trowbridge and may be termed a constructive trust, which equity will fasten on the conscience of the offending party, and convert him into a trustee of the legal title, and order him to hold and execute it in such manner as to protect the rights of the defrauded party, and promote the interests and safety of society. It differs from other trusts in that it is not within the intention or contemplation of the parties at the time the contract is made upon. which it is construed by the court, but it is thrust upon a party contrary to his intention and against his will. 1 Perry on Trusts, § 166.

If a person, occupying a fiduciary capacity, purchases property with fiduciary funds in his hands, and takes the title in his own name, he will, by construction, be charged as a trustee for the person entitled to the beneficial interest in the fund with which such purchase was made. This rule applies to a partner who fraudulently purchases for himself with the partnership funds, and it extends to personal as well as real estate; in every case the equitable ownership rests in the person from whom the consideration moves. Johnson v. Dougherty, 18 N. J. Eq. 406; Cutler v. Tuttle, 19 N. J. Eq. 558; Dyer v. Dyer, 1 Lead. Cas. in Eq. 203; 1 Perry on Trusts, §§ 127-130.

In Taylor v. Plumer, 3 M. & S. 575, Lord Ellenborough said that if A is trusted by B with money to purchase a horse for him, and he purchases a carriage with that money, B is entitled to the carriage. That it made no difference, in reason or in law, into what other form, different from the original, the change may have been made, for the product of or substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and the right ceases only when the means of ascertainment fail. This is declared to be the settled rule, in Story's Eq. Juris. §§ 1258, 1259..

So completely are the two things identified, even at law, where the conversion can be clearly traced, that in equity a distinction can never be drawn, between the money misappropriated and the results of its investment, in favor of the fraud-doer.

Nor does it make any difference that the investment turns out to be a profitable one, for, whatever the profit may be, it must belong to the cestui que trust. It is a constructive fraud upon the latter to use his property unlawfully and to retain the profit of the misapplication, it being a fundamental principle in regard to a trustee that he shall derive no gain to himself from the employment of the trust fund. 2 Story's Eq. Juris. § 1261; McKnight's Ex'rs v. Walsh, 24 N. J. Eq. 509.

THROCKM.EQq.Jur. (2D ED.)-24

вист

« ПретходнаНастави »