Brennaman v. Schell

• Decision Date: 24 October 1904
• Citation: 212 Ill. 356,72 N.E. 412
• Parties: BRENNAMAN et al. v. SCHELL.
• Court: Illinois Supreme Court

212 Ill. 356

72 N.E. 412

BRENNAMAN et al.

v.SCHELL. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Suit by Susannah Schell against Elizabeth Brennaman and others. From a decree in favor of complainant, defendants appeal. Affirmed.Livingston & Bach and Barr & Brennan, for appellants.

Thomas W. Tipton, for appellee.

This is a bill, filed on March 17, 1903, in the circuit court of McLean county by the appellee against the appellants, Elizabeth Brennaman and her husband, John Brennaman, and one Henry C. Bishop, for the purpose of having a trust declared in favor of appellee in lot 2, block 6, Phoenix's Addition to the city of Bloomington. The bill alleged that on September 29, 1896, the appellee purchased said lot from one Fritzen for $800, and caused the deed to be made to her daughter, the appellant Elizabeth Brennaman, with the mutual understanding and agreement that said appellant, who was then Lizzie E. Schell (now Brennaman), would convey the same on request; that appellee has caused improvements to be made upon the house on the premises, costing $1,000, and has occupied the same; that the deed was delivered to said Lizzie, or Elizabeth, for the purpose of vesting the title in trust for the use and benefit of appellee; that said Lizzie never paid any part of the purchase money, and, after her marriage with John Brennaman, borrowed from said Bishop $875, and, to secure the same, on October 7, 1902, executed a mortgage for said last-named sum; that said mortgage was in bad faith and without any color of right; that when it was made there was a mortgage on the premises for $353.75, which said Lizzie paid off out of the proceeds of the loan from Bishop; that appellee has offered to repay her said amount, and any taxes she may have paid, and has requested her to convey the lot to appellee, but that said Elizabeth refuses so to convey; that appellee is ready and willing to pay Elizabeth all the money she has advanced, and offers to pay the same; that appellee is entitled to a conveyance of said lot, and the cancellation of the Bishop mortgage, and prays for an accounting; and that the Bishop mortgage may be canceled, and said Elizabeth and her husband may be decreed to convey the lot to appellee by a good and sufficient deed.

Answers were filed by the three defendants, John and Elizabeth Brennaman and Bishop, to the bill, and subsequently there was filed by Elizabeth and John Brennaman an amended answer. The answer of Elizabeth Brennaman and her husband denies all the material allegations of the bill, and sets up that the agreement referred to in the bill was void as not being in writing in accordance with the requirements of the statutes of this state. The answers also set up that the conveyance made by Fritzen to Elizabeth Brennaman was made to fraudulently defeat the dower right of appellee's husband, and also that it was made as an advancement to appellant, and also that, after the deed was made, there was an agreement between appellee and her daughter by which the former agreed not to question the daughter's title to the lot.

After the cause was at issue, it was referred to a master in chancery to take testimony and report. The master's report finds substantially that the allegations of the bill are true, and that the appellee is entitled to the relief prayed for in the bill. Exceptions were filed to the report, which were overruled, and a final decree was rendered in favor of appellee on December 19, 1903, which decree was substantially in accordance with the prayer of the bill, and found that the equity of the cause was with the complainant, Susannah Schell; that, without the knowledge of the complainant, Elizabeth Brennaman and her husband mortgaged the premises to Bishop for $875; that out of this sum they paid a mortgage then on the premises, amounting to $375; that, as between Bishop and complainant and defendants, this mortgage is not questioned, but stands as a valid lien against the lot; that the money paid by the defendant on the prior mortgage of $375, and for repairs and improvements and taxes, amounted in all to $440; that the defendant, out of the proceeds of the mortgage which she put upon the premises held by her in trust for her mother, owed to appellee, after deducting said credits of $440, the sum of $466.32; and the decree thereupon ordered that Elizabeth Brennaman and her husband execute a deed to the appellee, conveying said lot, subject to the Bishop mortgage, which mortgage appellee was directed to assume and agree to pay and deliver to the master in chancery of the court within 30 days of the date of the decree for appellee; and that said Elizabeth should pay into the hands of the master $466.32 within 30 days of the signing of the decree, and, upon such payment being made, that the master should deliver such deed and money to the appellee, and, in default of said deed being executed and delivered, and in default of such payment within the time named, the master should executed and deliver to appellee a sufficient deed, subject to the Bishop mortgage, which appellee was to assume and agree to pay; that said master's deed should be sufficient to transfer all the interest of Elizabeth and John Brennaman in and to said lot; and, in default of the payment of $466.32 by Elizabeth Brennaman, the same should stand as a decree against her, and, if not paid within 30 days, that an execution issue therefor.

From the decree so rendered, the present appeal is prosecuted.

MAGRUDER, J. (after stating the facts).

First. The theory of the bill in this case is that the appellant Elizabeth Brennaman holds the legal title to the lot in question in trust for her mother, the appellee, and that such trust is a resulting one. The sum of $800 was paid for the lot, and the money so paid belonged to appellee. But when Fritzen, the vendor of the lot, made the deed, he made it to Lizzie Schell (now Brennaman), appellee's daughter, instead of making it to the appellee herself. The proof is quite clear to the effect that the money with which the lot was bought was appellee's money. There had been some trouble between appellee and her husband, and a separation had taken place between them, although there had been no divorce. Appellee's husband made arrangements to sell a farm, which he owned, for $10,500, and, believing that he was about to leave her, she refused to sign the deed, but finally did so upon his agreeing to give her $1,500. Accordingly, he paid her $1,500 of the purchase money, and himself took $9,000. The $800 with which the lot now in controversy was purchased was a part of this $1,500 so paid to her by her husband. The proof tends to show that this sum of $1,500 was first used in purchasing a farm, the title to which was taken in the name of her son, Robert Schell. But he held the title for the benefit of his mother, the present appellee. Subsequently Robert Schell sold the farm, and out of the proceeds were realized a certain sum of money, of which the sum of $800 here referred to was a part. Before this sum was used in the purchase of the lot now in controversy, it had been deposited in bank in the name of appellee's daughter, Mrs. Brennaman, but it was for the use of her mother, the appellee. Without going further into the details of the testimony, we are satisfied that, although the money originally given appellee by her husband was invested from time to time and the investments were changed, yet the money always remained hers, and that the sum of $800, which was a part of it, was her money at the time of the purchase of the lot in question.

Under this state of facts there was a resulting trust in favor of the appellee. That is to say, the appellant Mrs. Brennaman held the title under a resulting trust in favor of her mother, the appellee. It is well settled that, where the purchase money for land is paid by one person and the title thereby purchased is conveyed to another person, the law construes such facts as constituting a resulting trust. Such a resulting trust arises by operation of law. It does not spring from the contract or agreement of the parties, but from their acts. The beneficial estate follows the consideration, and attaches to the party from whom the consideration comes. Such trusts may be established by parol evidence, and the statute of frauds has no application to them. Our statute of frauds expressly provides that ‘resulting trusts, or trusts created by construction, implication, or operation of law, need not be in writing, and the same may be proved by parol.’ Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N. E. 383. The doctrine is thus stated in 15 Am. & Eng. Ency. of Law (2d Ed.) 1132: ‘It is the well-settled rule that, where the consideration for an estate is paid by one person and the legal title is conveyed to a third person, such third person being a stranger to the person paying the consideration, the person taking the legal title holds the land by way of a resulting trust in trust for the person

From the decree so rendered, the present appeal is prosecuted. making the payment. This trust arises from the character of the transaction, and is independent of any express agreement on the part of the grantee to hold in trust for the payor.' Mayfield v. Forsyth, 164 Ill. 32, 45 N. E. 403;Emmons v. Moore, 85 Ill. 304;Dorman v. Dorman, 187 Ill. 154, 58 N. E. 235,79 Am. St. Rep. 210;Lewis v. McGrath, 191 Ill. 401, 61 N. E. 135;Reed v. Reed, 135 Ill. 482, 25 N. E. 1095;McNamara v. Garrity, 106 Ill. 384. All the conditions required by the authorities to constitute a resulting trust existed in the matter of the purchase of the lot by appellee and the conveyance of the title thereof to appellee's daughter. In Reed v. Reed, supra, it was held that the trust can only arise from the original transaction at the time it takes place, and at no other time, and that the funds must be advanced and invested at...