Lang v. Dietz

• Decision Date: 19 June 1901
• Citation: 191 Ill. 161,60 N.E. 841
• Parties: LANG v. DIETZ.
• Court: Illinois Supreme Court

191 Ill. 161

60 N.E. 841

LANG

v.DIETZ.

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district.

Suit by Margaretha Dietz against Katherina Lang. From judgment of the appellate court (93 Ill. App. 148) affirming decree for complainant, defendant appeals. Affirmed.

Lackner, Butz & Miller, for appellant.

Nelson Monroe, for appellee.

BOGGS, J.

This is an appeal from the judgment of the appellate court for the First district affirming a decree entered in the superior court of Cook county awarding foreclosure of a trust deed in the nature of a mortgage on a bill in chancery exhibited by appellee against the appellant and others. The appellant is the widow of one John George Lang, deceased, and the other defendants to the bill were a brother and several nephews and nieces of said deceased, none of whom join in the appeal. The defense sought to be made was and is that there was no consideration for the note to secure which the mortgage was given. John George Lang was twice married, but no children were born to him by either wife. His first wife, Susanna Lang, owned lot 12 in Wallar's subdivision of the N. E. 1/4 of section 28, township 39 N., range 14 E. of the third P. M., in Cook county. The appellee, when but 2 years of age, was taken into the family of said Susanna and John George Lang, and was cared for and treated as their child. She sustained that relation to them until she had reached the age of 30 years, and faithfully served, assisted, and cared for them during that period of time. On the 21st day of July, 1893, said Susanna and John George Lang executed a note in the sum of $2,000, payable to the appellee five years thereafter, without interest; and on the same day signed and acknowledged a trust deed in the nature of a mortgage on said lot 12, which belonged to the wife, Susanna, as aforesaid, to secure the payment of the note. The decree was rendered to foreclose this trust deed. Susanna Lang died August 7, 1893, about two weeks after the execution of said note and trust deed. John George Lang intermarried with the appellant in about 18 months after the death of Susanna, his first wife, and died on the 26th day of September, 1896, leaving the appellant, his widow, but no child or children, or descendants thereof, him surviving. The appellant and said brother and said nephews and nieces are his legal heirs. The bill in chancery was brought after his death to foreclose the mortgage held by the appellee.

The contention of the appellant is that said Susanna Lang, being ill, and in the expectation of death, executed the note and mortgage as a gratuity-a mere gift-to the appellee; that the services rendered by the appellee while so a member of the family of the makers of the note and mortgage were rendered without any express or implied agreement that she was to be compensated therefor, and without intention on her part to charge for such services, or expectation to be paid therefor, and cannot be seized upon as constituting a consideration for the note. A promissory note intended as a gift is but a mere promise to make a gift in the future, and is lacking in consideration. Shaw v. Camp, 160 Ill. 425, 43 N. E. 608. The execution of a mortgage to secure such a note does not give it the character of an executed promise, or aid to supply a consideration. Grove v. Jeager, 60 Ill. 249. In the absence of an express or implied contract for wages or compensation, the implication of the law is there was no intention on the part of the appellee to charge for her services or assistance, or on the part of said Susanna or John George Lang to pay therefor, or to charge said appellee for her board, clothing, or support. Miller v. Miller, 16 Ill. 296;Brush v. Blanchard, 18 Ill. 46;Faloon v. McIntyre, 118 Ill. 292, 8 N. E. 315;Dunlap v. Allen, 90 Ill. 108. The case of Warren v. Warren, 105 Ill. 568, announces no different doctrine, and in principle is not in conflict with the cases above cited. In the Warren Case compensation was allowed the daughter on the ground that the law would imply a contract to compensate her from facts and circumstances established by the proof. If it be conceded that in the case at bar it was not made to appear in the proofs that there was a contract or understanding, express or implied, that the appellee was to be paid for her services, still we think the judgment of the appellate court and the decree of the circuit court should be upheld. It was proven by the testimony of the notary public who wrote the note and trust deed or mortgage, and before whom those instruments were signed and the mortgage acknowledged, that he was called to go to the house of Mr. and Mrs. Lang, and on arriving there found Mrs. Lang ill, and confined to her bed. Her husband, John George Lang, was there. Mrs. Lang said to the notary that she was old and sick, and did not know but that she would soon die, and that she intended to give the appellee (whom she called her adopted daughter) something to pay her for her services and labor during the many years she had lived with her and her husband; that she wanted to give her $2,000 in cash, and would pay her then, but that she did not have the money; and asked the notary if he could not prepare a paper that would secure that sum to the appellee. The notary told her it could be done by a note and trust deed. She directed the notary to prepare the note and trust deed. John George Lang, her...