Knowles v. Knowles

• Decision Date: 30 September 1877
• Citation: 86 Ill. 1,1877 WL 9646
• Parties: CATHARINE KNOWLES et al.v.PATRICK KNOWLES.
• Court: Illinois Supreme Court

86 Ill. 1

1877 WL 9646 (Ill.)

CATHARINE KNOWLES et al.

v.PATRICK KNOWLES.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane County; the Hon. HIRAM H. CODY, Judge, presiding.

Messrs. BOTSFORD & BARRY, for the appellants.

Mr. JOHN W. RANSTEAD, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

Patrick Knowles exhibited his bill in chancery in the court below, against Matthew Knowles and Catharine Knowles, his wife, and Charles J. Hawkins, trustee for Catharine Knowles, praying that Hawkins be decreed to convey to the complainant the legal title to a house and lot in the city of Elgin, which he held in trust for Catharine Knowles. It is alleged that complainant purchased the property of Catharine Knowles for $600, paid at the time, on October 13, 1868, and took the deed of herself and Matthew Knowles, her husband, therefor, in ignorance that the legal title was in Hawkins, as trustee for her; that the complainant, immediately after such purchase, was put in possession of the property, and has ever since enjoyed the same undisturbed; that he has paid, during the time, all taxes assessed on the property, and, shortly before filing the bill, had sold a portion of it to the C. & P. Railroad Company; and that Hawkins, although notified of his purchase and requested to make conveyance, has refused to do so. The defendants all answered, without oath, denying the right of the complainant to the relief prayed. The joint answer of Matthew and Catharine admits the conveyance by them to Patrick Knowles, as alleged in the bill, but denies that he purchased and paid for the property, or that it was intended their deed should convey an absolute title; and alleges that Patrick only loaned to Catharine $600, to secure the repayment of which, and the accruing interest, Patrick was to have the control and possession of the property, and that the deed was executed for that purpose alone, and is, consequently, but a mortgage; and they offer to redeem by paying what shall be found to be due for principal and interest on the loan, after an accounting for rents and profits by Patrick.

The court below decreed in conformity with the prayer of the bill.

The principal question is, whether the $600 paid by Patrick to Catharine was a loan, merely, or a payment for the property.

Although the deed is absolute in form, and there was no written condition of defeasance executed between the parties, the doctrine is too well settled to need discussion that parol evidence is admissible to show that, in fact, the deed is but a mortgage.

It was held by this court, in Sutphen v. Cushman et al. 35 Ill. 193, that in order to prove a deed, absolute in form, is a mortgage, evidence of witnesses as to their understanding of the intention of the parties in executing it is not pertinent, but it must be made to appear by facts proved that the transaction was such as the law implies created the relation of mortgagor and mortgagee. It was said: “The right to redeem lands so conveyed can not be established by simply proving that such was the understanding on which the deed was executed, because equity, as well as the law, will seek for the understanding of the parties in the deed itself. The right must be one paramount to, and independent of, the terms of the deed, as well as of any understanding between the parties at the time it was executed. Parol evidence is admissible so far as conduces to show the relations between the parties, or to show any other fact or circumstance of a nature to control the deed and to establish such an equity as would give a right of redemption, and no further. In the application of this rule parol evidence is received to establish the fact that a debt existed, or money loaned on account of which the conveyance was made; for such facts will, in a court of equity, control the operation of the deed. So, too, in regard to any other fact or circumstance having the same operation.”

If, therefore, in the present case, the $600 were loaned by Patrick to Catharine, and so created a debt for that amount from her to him, instead of being paid and received as the price of the property, and this formed the consideration for the execution of the deed, it is clear Catharine is entitled to redeem, and that otherwise she is not. The burden is upon Catharine to establish the fact of the loan; and this can not be done by loose, indefinite, or inconclusive evidence, but must be by clear and decisive proofs. Wilson v. McDowell, 78 Ill. 517; Conwell and another v. Evill, 4 Blackf. 68.

Matthew testifies: “We lived on these premises a short time after our marriage; got money of Patrick Knowles; said he had money, and if we would turn over the place to him he would give us the money; we wanted $600, and when we returned this money were to have the place back; he was to take the rents and keep the place in repair, and pay the taxes and interest on the money, and when we wanted the place he would give it back for the money and interest whenever paid.” On cross-examination he says: “When we got the money we went up to McHenry county and thought to buy a place there, but did not; we spent some of the money to live on; afterwards went to Chicago. Work on a salary; did not have much means; have had money in bank, and have money in bank now.” He further says that they have not lived in or controlled the house since. He admits that Patrick has paid the taxes, and says: “did not ask him to return the place until after I heard that he had sold it; * * * did not ask him to account for the rents; expected he would when we wanted the place back again; asked him once at Heelan's about giving the place back; said he would when he got his money; Heelan was present; no time mentioned when we were to pay the money back; wife had the money, except about $70 which I had; no rate of interest mentioned.”

Catharine, in her testimony, after stating that she bought the property during the war, with her own money, and had it conveyed to Hawkins as trustee, says: “I wanted some money; complainant said he would let me have it and take the place, collect the rents, pay the taxes, and when I wanted the place he would give it back and take his money; saw him after he had sold the place to the railroad company, in Chicago; said nothing about having sold the place; went to Elgin as soon as I heard he had sold the place, to see about it, and demanded a settlement with him, and said I would give him the $600 with interest, and he to account for the rents and profits, but he refused.” On cross-examination she says: “I left the house before we got the $600; wanted the money to buy a piece of land in McHenry county; did not buy it; was not suited there; used some of the money for support, and have some of it now; have money in bank now; told the tenants to pay rent to complainant; did not tell them he had bought the place.” She further says she was “out there two or three times, and in the house; did not offer to pay back money until after he sold the place; saw complainant at Heelan's, and he told me he would let me have the place for his money, but afterwards refused to do so.”

The complainant, Patrick, in his evidence, denies, in substance, every material fact testified to by the defendants, Matthew and Catharine, with reference to the character of the transaction. He says: “Bought the property of Catharine Knowles, October 13, 1868. Her husband came to me and said she wanted to sell the property; I told them not to sell it; she said she had to sell it, and if I did not buy, Hawkins would, and if there was money to be made she wanted me to make it; that it had been sold for taxes; said it was worth $600; agreed to take it for that sum; she sold...