Harris v. McIntyre
| Decision Date | 05 October 1886 |
| Citation | 118 Ill. 275,8 N.E. 182 |
| Parties | HARRIS v. McINTYRE and others. |
| Court | Illinois Supreme Court |
Appeal from Carroll county.
A resulting trust arises by implication of law, and does not depend on any agreement between the parties; and hence is not affected by the statute of frauds. Mahoney v. Mahoney, 65 Ill. 406;Wilson v. Byers, 77 Ill. 76;Smith v. Smith, 85 Ill. 189;Loften v. Witboard, 92 Ill. 461;Roberts v. Opp, 56 Ill. 34;Boyd v. McLean, 1 Johns. Ch. 582; Story, Eq. Jur. § 1201.
The grantee, with notice, of a trustee under a resulting trust, stands in his shoes, and is a trustee for the owner who paid the money. West v. Fitz, 109 Ill. 425.
The law presumes that a prudent man, before purchasing, will, if the land is occupied, make necessary inquiry to ascertain by whom and by what right he is there. Truesdale v. Ford, 37 Ill. 214;Clevinger v. Ross, 109 Ill. 349;Rupert v. Mark, 15 Ill. 540;Brooks v. Brown, 18 Ill. 542;Lyman v. Russell, 45 Ill. 281;Hubbard v. Kido, 87 Ill. 578; Story, Eq. Jur. § 400.
Parol evidence to establish resulting trusts is received with great caution. Perry, Trusts, 110, note, §§ 137-139; Lantry v. Lantry, 51 Ill. 458;Mahoney v. Mahoney, 65 Ill. 406;Enos v. Hunter, 4 Gilman, 218, 219;Maple v. Nelson, 31 Iowa, 322.
If the transaction can be called a loan, no resulting trust arises. Perry, Trusts, 106, note; Steele v. Clark, 77 Ill. 474;Doyle v. Murphy, 22 Ill. 502;White v. Carpenter, 2 Paige, Ch. 238, 239.
If the statute of frauds is set up as against express trusts resting in parol, its effect is inexorable on express trusts not in writing. McDonald v. Stow, 109 Ill. 44; Perry, Trusts, §§ 126-135; Hovey v. Holcomb, 11 Ill. 660;Greene v. Cook, 29 Ill. 193;Kane Co. v. Herrington, 50 Ill. 237;Carpenter v. Davis, 72 Ill. 17;Holmes v. Holmes, 44 Ill. 169;Sheldon v. Harding, Id. 69.
Parties must act with promptness, or show good and legal cause for long delays. Perry, Trusts, §§ 141, 870; Hall v. Fullerton, 69 Ill. 448;Carpenter v. Carpenter, 70 Ill. 457;Williams v. Rhodes, 81 Ill. 571;Castner v. Walrod, 83 Ill. 171;McDonald v. Stow, 109 Ill. 44;Breit v. Yeaton, 101 Ill. 244; 2 Story, Eq. Jur. § 1520.
Where possession is relied on as notice to purchasers of land of equitable claims not of record, it must be so open and notorious as to indicate to neighbors who has the control and management. Hubbard v. Kiddo, 87 Ill. 580;Truesdale v. Ford, 37 Ill. 214;Strong v. Shea, 83 Ill. 578;Smith v. Jackson's Heirs, 76 Ill. 254.M. Y. Johnson
and Geo. L. Hoffman, for appellant, Harris.
James Shaw, for appellees, McIntyre and others.
It is not alleged in the bill that appellees Ashway and Marks, or either of them, had actual notice of the equitable rights of appellant set up in her bill; and unless she had such possession of the land in question as would put them upon inquiry as to her rights therein, it is not contended that they had any notice whatever.
We have carefully considered the evidence preserved in the record, and find the facts proved to be these: In February, A. D. 1869, appellant, being a widow with two children, and having $1,600 in money, joined with her brother, Neil McIntyre, in the purchase of 152.84 acres of land known as the ‘Bellows Farm,’ for the purpose, as she claimed, of making it a home for herself and children, and the said Neil, who was a bachelor; that the land cost $2,100, she contributing $1,600, and said Neil $500, of the purchase money; that it was understood they should own said land as tenants in common, but said Neil, without the knowledge or consent of appellant, took the title to himself individually; that the deed was so taken February[118 Ill. 282]6, 1869, and soon after recorded on the land records of Carroll county; that immediately after the acquisition of said land appellant and her family and said Neil moved into the house on the premises, and from that time until the summer of 1881 continued to occupy it, all together, as one family, appellant being the housekeeper, and said Neil having control and management of the farm. It does not appear that she assumed or exercised any control or management of the premises or crops grown; or was in any way known, except as housekeeper for her brother. Neil was the owner of record, in possession, and in the actual control and management of the premises; disposed of the crops, and assumed to be the exclusive owner at the time of the loan by Mark of the money secured by the trust deed to Ashway. The premises were about to be sold upon a trust deed upon the whole land executed by said Neil to one Becker to secure a loan from Gillispie, and said Neil applied to Ashway for a loan upon the land to pay off such prior encumbrance. This being refused, an arrangement was subsequently made by which the said Neil agreed to and did convey the land to his brother, Daniel McIntyre, and the loan was made by Ashway to him of the money of Mrs. Mark, and the trust deed to Ashway, as trustee, taken to secure the same. This was on the twenty-sixth day of March, 1879. It appears, therefore, that there was nothing but the bare fact that appellant resided with her children upon the premises, ostensibly as the housekeeper of her brother Neil, to put them or any one upon inquiry. This condition had continued from the spring of A. D. 1869, when they went into possession. That the loan by appellee Ashway for Mrs. Mark was made in perfect good faith, and without any actual notice of any claim of appellant to the land in controversy, is abundantly shown by the evidence.
If appellant was, at the time of taking the trust deed by Ashway, in open and visible possession of the land, the law would charge appellees Ashway and Marks with notice of her equitable interest. Or, if the circumstances were such that an ordinarily prudent and cautious man would have inquired as to her claim upon the land, they will be held to have been bound to make inquiry, and be chargeable with such notice as diligent inquiry would disclose. Persons acquiring title to or liens upon land cannot shut their eyes willfully or negligently, where proper observation would lead to knowledge of the rights of others, and then be heard to insist they had no notice of that which, by the exercise of ordinary care and prudence, would have been apparent to them. The possession, however, which will protect the holder of an equitable title, must be such as to put purchasers upon inquiry which, if followed, would lead to notice of such equity.
It will be unnecessary to review here the numerous adjudications upon this subject. It will be found that at last each case must be determined by the circumstances of that particular case. The chancellor was called upon to say whether the possession of appellant was such as should, under the rule, have put the appellees upon inquiry, and he determined it in the negative, and with that finding we are not dissatisfied. Appellant had permitted, for over 10 years, the title to remain of record in her brother. Other mortgages or trust deeds, securing substantially an amount equal to one-half the value of the land, had been executed by the apparent owner, and for some years remained of record, unchallenged by her. She had permitted Neil McIntyre, who was invested with the legal title, to exercise, so far as the public could see, exclusive control and management of the farm and its products, without objection by her, or the assertion of any right on her own behalf. While she to all appearances was simply the housekeeper for her brother, and, so far as shown by the proof, apparently to the world occupied the premises in no other capacity, we are of opinion that, under these circumstances, appellee Ashway was warranted in relying upon the record and the combined declaration of Neil and Daniel McIntyre as to the state of the title, and that there was no such condition of affairs apparent as, in the exercise of common prudence, would suggest that inquiry would disclose any equitable title in appellant to this land. land.
As to the appellee Daniel McIntyre we are of opinion that the decree should be reversed in part. It is true that the evidence is conflicting; but, after careful consideration of it, we are satisfied that the decided weight of the evidence sustains the allegations of appellant's bill of complaint.
It will serve no good end to go into an extended discussion of the evidence, but it will be sufficient to say that appellant and Neil McIntyre both testify to the principal fact that $1,600 of appellant's money went into the purchase, and that the premises first bought were intended for a home for herself and family; and they are corroborated by Banken, whose advice appellant sought in reference to the investment, and by others; while the evidence in contradiction consists, in the main, of declarations of appellant, testified to after a considerable lapse of time, and many of them, when considered in the light of the surrounding circumstances, really not necessarily inconsistent with the theory of appellant's case. She is represented as at various times calling the farm Neil's farm; on several occasions saying that she had loaned her brother Neil her money; that she had trusted her brother, and had nothing to show for it, and like expressions. Five witnesses thus testify to conversations of appellant at various times from about the time of the purchase up to within a few years of the litigation. Some of them say she ‘claimed’ to have loaned her money to said Neil, without giving her language, and all testifying to loose conversations, occurring several years before giving their testimony, relating to subjects in which they had no personal interest, and very few of them pretend to give the particular phraseology, or to reproduce the exact conversation in which the language was employed. In many of the declarations testified to, the change of a word, or the form of expression, would render it consistent with the theory of app...
To continue reading
Request your trial