Mauricau v. Haugen

• Decision Date: 18 September 1944
• Docket Number: No. 27913.,27913.
• Citation: 56 N.E.2d 367,387 Ill. 186
• Parties: MAURICAU v. HAUGEN.
• Court: Illinois Supreme Court

387 Ill. 186

56 N.E.2d 367

MAURICAU

v.HAUGEN.

No. 27913.

Supreme Court of Illinois.

May 16, 1944.

Rehearing Denied Sept. 18, 1944.

Suit by Frances May Mauricau against A. I. Haugen to enjoin defendant and the sheriff of Tazewell county from selling the separate real estate alleged to belong to plaintiff to satisfy a judgment against her husband. From a decree for defendants, the plaintiff appeals.

Reversed and remanded, with directions.

J. M. Powers, of Pekin, for appellant.

Harold H. Kuhfuss and Velde & Prettyman, all of Pekin, for appellee.

GUNN, Justice.

Appeal from Circuit Court, Tazewell County; John T. Culbertson, Jr., Judge.

Appellant, Frances May Mauricau, filed her complaint in equity in the circuit court of Tazewell county to enjoin appellee, A. I. Haugen, and the sheriff of Tazewell county from selling the separate real estate alleged to belong to appellant to satisfy a judgment against her husband Van Buren Mauricau. At the time the execution was issued, title to one half of the real estate involved appeared of record in the name of Van Buren Mauricau, her husband, but appellant contends that equitably such interest was hers by reason of a resulting or constructive trust; that she had possession of the property, and that the debt of the husband having been incurred prior to her marriage, her rights as equitable owner are prior to those of the execution creitor, because he could have a lien only upon the property actually owned by her husband, Van Buren Mauricau. A temporary injunction was issued, the cause referred to a master in chancery, who reported the evidence and recommended that the plaintiff be denied relief, which report was approved by the court, and the complaint dismissed for want of equity. A freehold is involved inasmuch as the decree of the court had the effect of holding that appellant's husband had a one-half interest in her real estate, liable to being sold to pay his separate debts.

The judgment against the husband, Van Buren Mauricau, grew out of a breach of contract entered into with A. I. Haugen. At the time the contract was made in August, 1930, Mauricau was married to Jessie Mauricau. Appellant married Van Buren Mauricau April 22, 1933, after the death of Jessie Mauricau. Appellant had been employed for a number of years at a salary ranging from $165 to $175 per month, and also acquired certain properties by devise from her uncle. In 1936 and 1937 she acquired title to seven separate parcels of real estate in the village of Morton, in said county, for which she paid the total consideration and took title in her own name. January 24, 1941, she purchased an additional tract, referred to herein as the Smith property, title to which was taken in the name of herself and her husband, without her knowledge or consent, but the entire consideration was paid by appellant from her own funds. No part of the consideration for any of the properties above described was paid by Van Buren Mauricau.

November 7, 1938, the Adams Mercantile Company obtained a judgment against Van Buren Mauricau and the estate of his deceased wife for $1,247.37, upon which execution was not issued, and on the same day appellee, A. I. Haugen, also obtained a judgment against the same parties for $5,659.59. Appellant had no knowledge of this judgment until March or April, 1941. May 6, 1941, execution was issued upon the Haugen judgment and the sheriff levied upon and advertised for sale an undivided one-half interest in the eight properties above referred to. The apparent interest of Van Buren Mauricau, which was assumed to be subject to sale, arose in the following manner: July 13, 1938, appellant and her husband executed and delivered to Johanna Heinson a warranty deed to the seven properties above described, which was filed for record July 19, 1938. By deed dated July 13, 1938, although actually made several days later, Johanna Heinson reconveyed the premises to Frances May Mauricau and Van Buren Mauricau, husband and wife, as joint tenants and not as tenants in common. This deed was filed for record October 11, 1940. By a writing dated July 13, 1938, signed by Frances May Mauricau and her husband, the transfer of real estate to Johanna Heinson and the conveyance back to husband and wife is recited, but it is recited that Van Buren Mauricau had no interest in the property, and was a grantee solely as trustee and agent of his wife. It then makes provision for a disposition of the property in the case of the death of the wife prior to her husband. A similar declaration with respect to the Smith property acquired January 24, 1941, was made in writing, and signed by appellant and her husband. Neither of these acknowledgements of trust upon the part of the husband was ever recorded.

The occasion for the transfer of the seven tracts to Johanna Heinson arose out of the fact she had become the surety on a replevin bond of appellant, who attempted to recover certain securities deposited by appellant with N. L. Rogers & Co., and also as security for a loan of $1,500. Within a few days after the conveyance to Mrs. Heinson had been made she was required to reconvey the property to appellant, the deed, however, not to be recorded until the liability upon the replevin bond had been satisfied.

The finding of the master is to the effect that the return deed executed by Johanna Heinson was not made on the same day as the conveyance to her but some three or four days later, and that it named appellant and her husband as joint-tenant grantees, without the knowledge or direction of appellant; that it was brought from the office of the attorney who prepared it to appellant by her husband. The master further finds that upon reading the deed, when handed to her by her husband, appellant was very much disturbed, and that shortly thereafter she went to the office of the attorney who had prepared the deed and inquired why her husband had been made grantee, and then took the matter up with her husband, resulting in both of them declaring in writing that the interest of the husband was that of a trustee, only. The master finds the Smith deed was made to appellant and her husband as joint tenants, but that appellant paid the entire consideration out of her funds. Appellant testified she never saw the deed until after it was recorded; that she did not give directions to have it so prepared, and did not know it was being so drawn, and upon discovery thereof immediately took the matter up with her husband, resulting in the declaration of trust by the latter. The master also finds that all of the business transacted with respect to the several properties, such as collecting the rents, making repairs, paying taxes and other expenses was handled solely by appellant, except in a few isolated instances where the husband collected rent. Other material facts for a proper decision of the case will be referred to in this opinion as occasion shall arise.

The appellant contends that under such facts the property sought to be levied upon is her separate estate; that she is not liable for any part of her husband's debts from such estate; that appellee is not entitled to levy upon such property because Van Buren Mauricau did not have an interest therein at the time the judgments were procured against him; that the judgments and execution were only a lien upon his real interest and not his apparent interest. Also the facts disclose appellant was in possession of the property to such an extent that appellee was bound to ascertain the nature and character of her interest. The master made a finding that the transfer was presumptively a gift to the husband, which is assigned as error by appellant.

The appellee contends that the deed to Johanna Heinson was a fraudulent conveyance made for the purpose of delaying and defrauding creditors, and that he is entitled to rely upon the provisions of the statute that all deeds shall take effect and be in force from and after the time of filing for record as to all creditors and subsequent purchasers without notice (Ill.Rev.Stat.1943, chap. 30, par. 29); that there was no resulting or constructive trust, but an express trust, which must be in writing, and was required to be recorded to give notice, and that the possession of the properties by appellant was insufficient to give appellee constructive notice.

The points raised require discussion of the applicability of several propositions of law, which will be taken up in their order. The wife has the right to own and control separate property, the control of which is given to her exclusively, without being subject to the debts of her husband. Section 5 of the Husband and Wife Act (Ill.Rev.Stat.1943, chap. 68, par. 5,) expressly provides: ‘neither husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and * * * shall not be liable for the separate debts of each other.’ Section 9 of the same act provides that a wife may purchase, own, manage, sell and convey property to the same extent as her husband. While this statute was adopted as remedial of the policy of the common law, which for practical purposes placed all of a wife's property under the control of the husband, frequently the rights in property as between them are not so easily determined. The relationship of husband and wife is one of such confidence and trust that transactions between them are scrutinized very closely.

This court had frequently had occasion to consider the rights between husband and wife where conveyance of property is made between them and a contention is made that a trust relationship is created. As a general proposition of law an unauthorized conveyance of one's property to another gives rise to an implied trust, whether it be designated constructive or resulting. White v. Cannon, 125 Ill. 412, 17 N.E. 753;Madison v. Madison, 206 Ill. 534, 69 N.E. 625;O'Donnell v. O'Donnell, 303 Ill. 31, 135 N.E. 28. This is especially true of...