Buskirk v. Van Buskirk

• Decision Date: 26 October 1893
• Citation: 35 N.E. 383,148 Ill. 9
• Parties: VAN BUSKIRK et al. v. VAN BUSKIRK.
• Court: Illinois Supreme Court

148 Ill. 9

35 N.E. 383

VAN BUSKIRK et al.

v.VAN BUSKIRK.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from circuit court, Carroll county; John D. Crabtree, Judge.

Bill by Thomas Van Buskirk, by his next friend, against Clarissa and Frank Van Buskirk, to declare a trust, and for an accounting. Decree for complainant. Defendants appeal. Modified.Eaton & Hoffman and J. M. Hunter, for appellants.

D., T. J. & J. M. Shean and Henry Mackay, for appellee.

The other facts fully appear in the following statement by MAGRUDER, J.:

This is a bill filed on November 24, 1890, in the circuit court of Carroll county by the appellee, Thomas Van Buskirk, an insane person, suing by his next friend, against the appellants, Clarissa Van Buskirk, the widow, and Frank Van Buskirk, the adopted son and only heir, of Jesse Van Buskirk, deceased, for the purpose of having a resulting trust declared in favor of the complainant in a certain tract of 80 acres, described as the ‘W. 1/2 S. W. 1/4 Sec. 14,’ etc., for an accounting of the rents and profits of said land received by the defendants since the decease of said Jesse, for a conveyance of said 80 acres by the defendants to the complainant, and for such other relief as equity may require, etc. The defendants filed answers denying the material allegations of the bill, charging laches, and pleading the statute of limitations, and also the statute of frauds. The decree of the circuit court was in accordance with the prayer of the bill, and the present appeal is prosecuted from that decree.

Jesse and Thomas Van Buskirk were brothers. They came to Carroll county in 1845 of 1846. On May 18, 1846, each entered 160 acres,-Jesse, the N. E. 1/4 section 15; and Thomas, the S. E. 1/4 section 15. East of N. E. 1/4 section 15 was W. 1/2 N. W. 1/4 section 14, and east of S. E. 1/4 section 15 was W. 1/2 S. W. 1/4 section 14. On May 15, 1848, Jesse entered said 160 acres in section 14. It is claimed in the bill that in 1848 the two brothers, who were both unmarried, were partners in the farming business; that the 160 acres were purchased with partnership funds; that there was an agreement between them by the terms of which Jesse was to enter the 160 acres with partnership money, and the title to the north 80 acres, or W. 1/2 N. W. 1/4 section 14, should be taken in Jesse's name, and the title to the south 80 acres, or the W. 1/2 S. W. 1/4 section 14, should be taken in the name of Thomas; that Jesse went to Dixon on May 15, 1848, and entered both tracts in his own name, instead of entering the south 80 acres in the name of Thomas. The south 80 acres is the tract here in dispute; the defendants claiming to own the tract as heirs of Jesse Van Buskirk, deceased, and the complainant claiming that said Jesse in his lifetime held the title in trust for him, the complainant, and that the defendants, as the heirs or widow and heirs of the deceased, now hold said title in trust for the complainant.

MAGRUDER, J., (after stating the facts.)

About May 15, 1848, Jesse Van Buskirk became the holder, by assignment to himself, of a military land warrant, under which he located and entered on that day 160 acres of land in his own name, and a patent was issued to him on September 1, 1849. The tract of 160 acres lay east of 320 acres then owned by himself and his brother, Thomas Van Buskirk. He owned the north half of the 320 acres, and his brother, Thomas, the south half thereof. The present bill seeks to establish a resulting trust in the south 80 acres of the 160 acres entered on May 15, 1848, in favor of Thomas Van Buskirk. It is claimed by the appellee that, although the legal title to the 160 acres was taken in the name of Jesse, and was in him at the time of his death, the consideration for the purchase of the south half thereof was paid by Thomas. Where one of two parties, who are strangers to each other, takes the title to a piece of land, but the other advances the purchase money, a resulting trust will exist in favor of the latter, and the holder of the legal title will be regarded as the trustee of the party furnishing the money. Mahoney v. Mahoney, 65 Ill. 406. Where two persons together advance the price, and title is taken in the name of one of them, a trust results in favor of the other to such proportion of the property as is equal to the proportion of the consideration contributed by him. Smith v. Smith, 85 Ill. 189;McNamara v. Garrity, 106 Ill. 384;Springer v. Springer, 114 Ill. 551, 2 N. E. Rep. 527. The sums severally contributed must be for distinct interests or aliquot parts of the estate. Reed v. Reed, 135 Ill. 482, 25 N. E. Rep. 1095; Stephenson v. McClintock, 141 Ill. 604, 31 N. E. Rep. 310. Where two contribute funds, and the proportions do not appear, the presumption is that the proportions are equal. 1 Perry, Trusts, § 132. The trust must arise, if at all, at the time of the execution of the conveyance, and when the legal title vests in the grantee. Id. § 133; Reed v. Reed, supra; Stephenson v. McClintock, supra. Such a resulting trust does not spring from the contract or agreement of the parties, but from their acts. It is not created by contract, but by implication of law apart from contract. 1 Perry, Trusts, § 134; Donlin v. Bradley, 119 Ill. 412, 10 N. E. Rep. 11; Sheldon v. Harding, 44 Ill. 68;Stephenson v. Thompson, 13 Ill. 186;Bruce v. Roney, 18 Ill. 67;Perry v. McHenry, 13 Ill. 227;Lear v. Chouteau, 23 Ill. 39. When the two facts, to wit, payment of the purchase money by one and conveyance of the title thereby purchased to another, are found to exist, then the law so construes those two facts as to make them constitute a resulting trust, and for this reason such a trust is said to arise by operation of law. Smith v. Smith, supra; Donlin v. Bradley, supra. The principal estate follows the consideration, and attaches to the party from whom the consideration comes. 2 Pom. Eq. Jur. § 1037. Since the whole foundation of resulting trusts of this class is the ownership and payment of the purchase money by one when the title is taken in the name of another, it follows that such trusts may be established by parol evidence. 1 Perry, Trusts, § 137; 2 Pom. Eq. Jur. § 1040; Donlin v. Bradley, supra. Indeed, 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.’ Rev. St. c. 59, § 9; 1 Starr & C. Ann. St. p. 1200. The material circumstances to be shown by such parol evidence is the source of the consideration paid for the land. The burden of proof is upon the party seeking to establish the trust, and he must prove that the alleged cestui que trust paid the purchase price. 10 Amer. & Eng. Enc. Law, p. 29, and cases cited in notes. Such evidence must be ‘clear, strong, unequivocal, unmistakable,’ and must establish the fact of the payment by the alleged beneficiary beyond a doubt. 2 Pom. Eq. Jur. § 1040; Green v. Dietrich, 114 Ill. 636, 3 N. E. Rep. 800; Heneke v. Floring, 114 Ill. 554, 2 N. E. Rep. 529; Mahoney v. Mahoney, supra. The admissions of the nominal purchaser and grantee in the deed are held to be competent evidence upon this subject. 1 Perry, Trusts, § 137. Such admissions, however, are to be received with great caution, and are frequently entitled to little weight. Corder v. Corder, 124 Ill. 229, 16 N. E. Rep. 107; 10 Amer. & Eng. Enc. Law, p. 30, and cases cited in notes. We think, however, that there is a clear distinction between proof of the declarations of the grantee to the effect that he holds the title for another, or has agreed to convey to another, and his declarations or admissions to the effect that another person's money was paid for the land. Declarations of the latter class are entitled to more weight than those of the former class, especially when they are corroborated by circumstances and attended by proof of some previous arrangement under which the money was advanced. 10 Amer. & Eng. Enc. Law, p. 30; 1 Perry, Trusts, § 137. The admission of a trustee that he purchased certain property with the trust fund is competent evidence to raise a resulting trust for the cestui que trust in that property. Id. § 137, note 1, on page 156, referring to Bank v. Tyler, 3 Watts & S. 373. In Ryder v. Emrich, 104 Ill. 470, it was held that the admissions of the grantee in the deed, on repeated occasions and to different persons, that the money of the cestui que trust was paid for the land, were ‘entirely sufficient to clearly establish that fact.’ In Stephenson v. McClintock, supra, it was held that, although the verbal declarations of a party are not competent evidence to prove a contract to give another an interest in land held by him, they are competent, in connection with other evidence, to prove that he purchased the land with money in part belonging to such other person, and the extent of that part. The death of the nominal purchaserdoes not affect the admissibility of such parol testimony, whatever effect it may have on its weight. 1 Perry, Trusts, § 138; Ryder v. Emrich, supra.

About 1845, Jesse and Thomas Van Buskirk settled upon the N. E. 1/4 section 15, entered in 1846 in Jesse's name, and the S. E. 1/4 section 15, entered in 1846 in Thomas' name. They are described as having lived together upon this tract in a dugout or shanty until some time in 1849 or 1850, when a house was built upon the N. E. 1/4 section 15. They lived in this house together until February 15, 1851, when Jesse was married. Thomas still continued to live with Jesse and his wife until they went to California, in 1852, where they remained three years. During their absence Thomas lived in the house upon Jesse's north 160 acres with renters or tenants, who also occupied it, and, while Jesse was away, looked after the latter's interests, and attended to the farming business. After his brother's return, Thomas continued to live with him until some...