Harmon v. Martin

• Decision Date: 22 January 1947
• Docket Number: No. 29480.,29480.
• Citation: 395 Ill. 595,71 N.E.2d 74
• Parties: HARMON et al. v. MARTIN et al.
• Court: Illinois Supreme Court

395 Ill. 595

71 N.E.2d 74

HARMON et al.

v.MARTIN et al.

No. 29480.

Supreme Court of Illinois.

Jan. 22, 1947.

Appeal from Circuit Court, Marion County; Franklin R. Dove, judge.

Suit to quiet title by John F. Harmon, Jr., and others against John C. Martin, H. G. Ferguson and others, wherein the last named defendant filed a counterclaim. From an adverse decree, H. G. Ferguson appeals.

Affirmed.

R. O. Horn, of Salem, and Putting & Putting, of Spingfield, for appellant.

John L. Kagy, of Salem, for plaintiff-appellees.

Baker, Leseman, Kagy & Wagner, of East St. Louis, for defendant-appellees.

THOMPSON, Justice.

April 10, 1943, John F. Harmon, Jr., Dwight D. Taylor, Grace M. Taylor, A. E. Miller, Richard A. Anderson, and Cora Anderson (who will hereinafter, for brevity and convenience, be referred to as plaintiff-appellees) filed in the circuit court of Marion county a complaint in chancery, wherein, for themselves and others similarly situated, they sought to quiet title to property in the Miller-Roddy subdivision, the Brookside addition and the Vandervort-Kell addition to the city of Salem as agaisnt any claims of the defendants, John C. Martin, B. E. Martin, W. O. Roddy, H. G. Ferguson, Lulu C. Vandervort, Cecil M. Kell, Mary Kell Bowers and Rita Kell Hawkins.

The complaint alleged in substance that prior to October 1, 1919, the defendants, John C. Martin, B. E. Martin, W. O. Roddy and H. G. Ferguson, together with O. A. Kell and E. B. Vandervort, entered into a secret agreement or understanding and, in pursuance of such agreement, purchased certain real estate, taking the title to a part thereof in the name of Vandervort and the title to a part in the name of Roddy; that Vandervort and Roddy caused a part of said lands to be platted as the Miller-Roddy subdivision, and Vandervort caused another part to be platted as the Brookside addition to Salem; taht the said Roddy and Vandervort thereupon proceeded, with the advice, consent, knowledge, acquiescence and connivance of the said John C. Martin, B. E. Martin, H. G. Ferguson and O. A. Kell, to sell lots in said platted tracts, accept the purchase money therefor, and give to the respective purchasers warranty deeds for the property so purchased; that April 12, 1920, O. A. Kell died intestate, leaving surviving as his only heirs-at-law, the defendants, Cecil M. Kell, Mary Kell Bowers and Rita Kell Hawkins; that August 13, 1924, E. B. Vandervort died testate, leaving the defendant, Lulu C. Vandervort, as his sole devisee and legatee; that at the time of his death Vandervort still retained title to a portion of the premises conveyed to him, and on December 8, 1924, the defendant, Lulu C. Vandervort, as the sole devisee and legatee of E. H. Vandervort, deceased, conveyed the same by warranty deed to the defendant, B. E. Martin; that a portion of the same had not been platted, and the said Martin caused such portion to be platted as the Vandevort-Kell addition to Salem, and with the advice, consent, knowledge, acquiescence and connivance of the other defendants, sold and conveyed certain of the properties so conveyed to him by the defendant, Lulu C. Vandervort, and accepted from the purchasers thereof the purchase money therefor, and by warranty deed purported to convey full title to the parties so purchasing; that on or about July 23, 1942, certain instruments disclosing the abovementioned secret agreements were filed for record in the recorder's officer of Marion county, and that the defendant Ferguson refuses to exeucte proper instruments for clearing the titles of the present owners of properties in said subdivision and additions. The complaint prayed that the defendants, and each of them, be decreed to have no right, title or interest in and to any of the property described in the complaint, that the defendants be barred and foreclosed from asserting any right, title or claim thereto, and that the owners of property in said subdivision and additions be declared to own the same free and clear of any claims, rights and demands of any kind or nature on the part of the defendants.

Ferguson (hereinafter designated as appellant) answered the complaint, admitting its material allegations, and alleging that he and the said John C. Martin, B. E. Martin, W. O. Roddy, O. A. Kell and E. B. Vandervort furnished the funds with which Vandervort purchased the lands to which he took titel. He alleged that Vandervort during his lifetime held said title in trust for appellant and the other persons furnishing the purchase price, and that the defendant, Lulu C. Vandervort, after Vandervort's death, in the inventory of his estate filed by her as executrix, described the property and expressly stated that the title to the same was held in trust by the deceased for himself and five others, the deceased owning an undivided one-sixth part thereof in fee simple. Appellant denied that Julu C. Vandervort, B. E. Martin, or any other person had any right or authority to convey any of the real estate held in trust by Vandervort. He also denied any knowledge that Roddy ever claimed or purported to be the owner of any real estate described in the complaint and alleged that no act of Roddy's was ever committed with appellant's knowledge or consent.

Appellant also filed a counterclaim, setting up that on or about October 1, 1919, John C. Martin requested him to contribute money toward the establishment of a trust for the purpose of purchasing certain described real estate; that pursuant to such request he advanced the sum of $2500, to be used with like sums advanced by John C. Martin, B. E. Martin, W. O. Roddy, O. A. Kell and E. B. Vandervort; that Vandervort, as trustee, took charge of said trust funds and required title to the real estate on September 29, 1919, by warranty deed, in which Vandervort was named as grantee; that Vandervort, on October 1, 1919, executed a written declaration of trust, and that he acted as trustee of said real estate until his death on August 13, 1924; that Lulu C. Vandervort was the exeuctrix of his estate and as such executrix filed an inventory in which she included such of the trust property as had not been sold by the deceased, and expressly stated in the inventory that the title was held in trust by deceased for himself and five others, deceased owning a one-sixth part thereof in fee simple.

Appellant's counterclaim further alleged that since the death of Vandervort the legal and equitable title to the real estate held by him has remained and still remains in the trust, and that appellant, as one of the beneficiaries of the trust, is the owner of an undivided one-sixth thereof; that none of the counterdefendants are bona fide purchasers; that none of them ever received a conveyance from Vandervort or from anyone having a lawful right to make such conveyance; that none of such conveyances were made with the knowledge or consent of appellant; and that none of the counterdefendants have any lawful right, title, interest or ownership in said real estate, or any part thereof, except such as some of them may have as beneficiaries of the trust. The prayer of appellant's counterclaim was that the trust be decreed to be the absolute owner in fee simple of the real estate in question and that the counterdefendants be ordered to return all of said real estate to the possession of the trust.

Plaintiff-appellees answered appellant's counterclaim, denying that appellant was entitled to the relief sought.

The counterdefendants, John C. Martin, B. E. Martin, W. O. Roddy, Lulu C. Vandervort, Cecil M. Kell, Mary Kell Bowers and Rita Kell Hawkins (who will hereinafter, for brevity and convenience, be referred to as defendant-appellees) answered appellant's counterclaim, and also filed a counterclaim, alleging that prior to October 1, 1919, appellant and the said John C. Martin, B. E. Martin, W. O. Roddy, O. A. Kell and E. B. Vandervort formed and entered into a joint venture or real-estate syndicate for the purchase, subdividing, improvement, sale and disposition of certain lands therein described, under an oral agreement which provided that each of the joint adventurers or members of the syndicate should contribute the sum of $2500, that the real estate should be purchased and title taken in the name of one or more of the joint adventurers of syndicate members, and should be platted, improved with roads, streets, sidewalks and dwellings, and sold, that the expenses incurred in connection with the joint venture should be paid out of the proceeds of said sales and from loans on the property of the syndicate, that full and complete title in fee simple absolute should be conveyed to the purchasers of the property by the syndicate member holding legal title thereto, that the joint adventurers or syndicate members should share equally in the profits of the venture or partnership after the payment of all expenses, including the reasonable commissions of Roddy for selling the lots, that, in the event of the death of the partner holding legal title, the real estate then owned by the syndicate should be conveyed to a surviving member of the syndicate, who would then possess the same powers as the prior holder of the legal title, and that the business of the joint venture or syndicate should continue until all of the real estate was sold or until a majority of the joint adventurers or syndicate members, or their successors, determined to conclude the same and distribute its assets among those entitled to them. It was alleged that shortly after the making of such agreement the syndicate purchased and entered into possession of certain described real estate, the title to a part thereof being taken in the name of Vandervort and the title to a part in the name of Roddy; that, in pursuance of the business of the syndicate, Vandervort and Roddy platted Miller & Roddy's subdivision and Vandervort platted the Brookside addition, and that sales and conveyances were made of a number...