Hagan v. Varney

• Decision Date: 27 October 1893
• Citation: 147 Ill. 281,35 N.E. 219
• Parties: HAGAN et ux. v. VARNEY et al.
• Court: Illinois Supreme Court

147 Ill. 281

35 N.E. 219

HAGAN et ux.

v.VARNEY et al.¹

Supreme Court of Illinois.

Oct. 27, 1893.

Error to Champaign county court.

Bill by George W. Varney and others against John Hagan and Amelia Hagan to enforce a trust. Complainants obtained a decree. Defendants bring error. Affirmed.J. L. Ray and J. S. Wolfe, for plaintiffs in error.

E. L. Sweet, for defendants in error.

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

This was a bill in chancery, brought by George W. Varney and five others, children of Lydia M. Varney and Bowman Varney, her husband, against John Hagan and Amelia Hagan, his wife, to assert the equitable title of the complainants to a certain tract of land in Champaign county, and to compel a conveyance of the same from the defendants to them. The facts disclosed by the pleadings and proofs are, in substance, these: On the 25th day of February, 1868, Lucy J. Varney, the stepmother of Bowman Varney, being the owner in fee of the land in question, executed and delivered to Lydia M. Varney the following deed conveying the same: ‘This indenture, made the twenty-fifth day of February, A. D. 1868, by and between Lucy J. Varney, party of the first part, and Lydia M. Varney, party of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of one dollar to her hand paid, and that in faithful performance of the trusts hereinafter mentioned, does hereby grant, bargain, sell, and convey to the said party of the second part, her heirs and assigns, all the following described lots, pieces, or parcels of land situate in the county of Champaign and state of Illinois, to wit, the northeast quarter of the southeast quarter and the east half of the southeast quarter of the southeast quarter of section number thirty-two (32) in township number nineteen (19) north, and range eight (8) east, containing about sixty acres, together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion, reversions, remainder, remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the said party of the first part, either in law or equity, of, in, or to the said premises, tenements, hereditaments, and appurtenances; to have and to hold the same unto the party of the second part, and her heirs, in trust for the following purposes, to wit: (1) During her lifetime to have and hold said premises entirely to and for her own sole and separate use and benefit, and during that time receive the rents, issues, and profits thereof to her own sole and separate use, upon condition, however, that she shall during that time suitably feed, lodge, clothe, and educate all children which have been or may hereafter be born of her by virtue of her marriage with Bowman Varney, during the minority of each child. (2) In case of the death of said party of the second part, leaving her said husband, Bowman Varney, her surviving, then the said premises shall be held to his use and benefit, and he occupying the same, or receiving the rents, issues, and profits thereof, during his natural life, upon condition, however, that he shall feed, lodge, clothe, and educate such children as aforesaid, in the manner aforesaid, and, upon his default to do so, then to be held during his, said Bowman's, natural life, for the use and benefit of said children. (3) Upon the further trust to convey said property in fee simple, by good and sufficient deed, to such children as aforesaid, their heirs or assigns, upon the death of both said party of the second part and her said husband, Bowman. (4) Upon the further trust to convey said property in fee simple to such children as aforesaid, their heirs or assigns, upon the said party of the second part marrying again. And the said party of the first part, for herself, her heirs, executors, and administrators, covenants and agrees to and with the said party of the second part, and her heirs and assigns, that she is lawfully seised of said premises in fee simple, and has right and full power to grant, bargain, and sell the same in manner and form as aforesaid; that the same are clear from all incumbrances done or suffered by her, and she will, and her heirs, executors, and administrators shall, forever warrant and defend the same against the lawful claims of all persons claiming to or claim the whole or any part thereof by, through, or under her. And the said party of the second part, in consideration of the premises, hereby accepts and takes upon herself the performance of the above-mentioned trusts, and for herself, and her heirs, executors, and administrators, covenants with said party of the first part that she and they shall and will faithfully keep and perform the above-mentioned trusts and conditions to be by them performed. In testimony hereof, the said parties have hereunto, interchangeably, set their hands and seals this day and year first above written. Lucy J. Varney. [Seal.] Lydia M. Varney. [Seal.]’ On the 28th day of March, 1868, this deed was duly recorded in the office of the recorder of Champaign county. Shortly after its execution, Lydia M. Varney and her husband moved upon the land conveyed, and made it their residence and homestead. While in possession, they placed upon the land certain buildings and other improvements; and subsequently, in a mechanic's lien proceeding,-to which Lydia M. and Bowman Varney were parties, but to which their children, the present complainants, were not parties,-a decree was rendered establishing a lien against the land, and ordering it to be sold for the satisfaction thereof. Under that decree the land was sold, and a master's deed was afterwards executed to the petitioning creditors. To obtain a reconveyance of the land, Lydia M. Varney and husband negotiated and obtained a loan of money, and, to secure the same, executed a mortgage on the land. When that mortgage matured, they paid it by obtaining another loan, and executing a new mortgage therefor; and that mortgage was paid, after its maturity, by obtaining a further loan from still other parties, and the execution of a third mortgage on the land. This last mortgage was for $900. Some time in March, 1885, the defendants, John Hagan and wife, having a little money, and desiring to purchase a small piece of land, learned that the land in question was for sale. They thereupon called upon Lydia M. Varney and her husband, with a view of purchasing it; and negotiations were entered upon which resulted in an agreement by Lydia M. Varney and husband to sell the land to the defendants, they agreeing to pay therefor the money they then had, being about $1,500, and to assume the payment of the $900 mortgage. The vendors were to furnish an abstract of title, which they did; the deed from Lucy J. Varney to Lydia M. Varney being described therein simply as a warranty deed, executed in consideration of $1; no reference being made to any of the conditions therein contained, or the trusts therein declared. The abstract was submitted to an examiner, who reported that the title thereby shown in Lydia M. Varney was a perfect title in fee simple; and thereupon the purchase was consummated by a conveyance of the land from Lydia M. Varney and husband to Amelia and John Hagan by deed with full covenants of warranty, and by the payment by the purchasers to the vendors of the cash payment, and the assumption of the mortgage, which the purchasers afterwards paid and satisfied. The price thus paid seems to have been, at that time, the fair cash value of the land. Lydia M. Varney died June 6, 1888, and Bowman Varney died in March, 1891. On the 23d day of April, 1891, the present bill was filed, two of the complainants then being adults, and the others being still minors. The case was...