Mcnamara v. Garrity

• Decision Date: 29 March 1883
• Citation: 1883 WL 10221,106 Ill. 384
• Parties: ANTHONY MCNAMARA et al.v.THOMAS GARRITY.
• Court: Illinois Supreme Court

106 Ill. 384

1883 WL 10221 (Ill.)

ANTHONY MCNAMARA et al.

v.THOMAS GARRITY.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

APPEAL from the Circuit Court of Greene county; the Hon. CYRUS EPLER, Judge, presiding.

Mr. JAMES R. WARD, for the appellants:

The Statute of Frauds was set up and relied upon by appellants in their answer. Its effect can not be avoided. The decree, therefore, can not be sustained by mere parol proof of a contract or express trust. Carpenter v. Davis, 72 Ill. 17; Hovey v. Holcomb, 11 Id. 665; Hurd's Stat. 1881, secs. 2, 9, chap. 59.

A resulting trust can not be created by contract or agreement. If a trust of any kind is created by contract, it will be an express and not a resulting trust. Loomis v. Loomis, 28 Ill. 457; Holmes v. Holmes, 44 Id. 169; Sheldon v. Harding, Id. 69; Remington v. Campbell, 50 Id. 516.

After the lapse of twenty years the law will require the clearest and most satisfactory proof of the trust before relief will be granted. Enos v. Hunter, 4 Gilm. 218; Kane County v. Herrington, 50 Ill. 232; Lantry v. Lantry, 51 Id. 466; 1 Perry on Trusts, 151, sec. 137.

Payment at the time of the purchase is indispensable to the creation of the trust. Loomis v. Loomis, 28 Ill. 456; 1 Perry on Trusts, sec. 133.

After the legal title has vested, and there is no fraud, payment of the unpaid purchase money by a third person will not raise the trust. Walter v. Klock, 55 Ill. 362; Beach v. Dyer, 93 Id. 301; Lear v. Choteau, 23 Id. 39.

As to what is essential to the existence of a resulting trust, see Alexander v. Tams, 13 Ill. 225; Perry v. McHenry, Id. 233; Bruce v. Roney, 18 Id. 73; Lantry v. Lantry, 51 Id. 458.

If this is a resulting trust, we insist that the Statute of Limitations, set up and relied on in our answer, bars the suit. Quayle v. Guild, 91 Ill. 384; Albrecht v. Wolf, 58 Id. 190; Kane County v. Herrington, 50 Id. 237.

Mr. HENRY C. WITHERS, for the appellee:

Possession of land by a person having an interest therein is sufficient to charge all persons with notice of his rights, legal or equitable. Reeves v. Ayers, 38 Ill. 418; McMannis v. Keith, 49 Id. 388. Where one person purchases real estate with the money of another, a resulting trust arises in favor of the person furnishing the money. Franklin et al. v. McIntyre et al. 23 Ill. 91.

Where two parties agree that one shall purchase land, which is done, each paying one-half the price, and the deed is made to the one making the purchase, a resulting trust will arise in favor of the other as to an undivided half of the land, notwithstanding he paid his part of the money under an express agreement that the party taking the deed should convey him one-half interest. Smith v. Smith, 85 Ill. 189.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Thomas Garrity exhibited his bill in chancery in the Greene circuit court, against Anthony McNamara and others, praying for the conveyance to him of a certain ten-acre tract of land therein specifically described. The substance, in brief, of the allegations of the bill is this: On the 23d of April, 1859, Garrity and McNamara agreed, between themselves, to buy a designated forty-acre tract of land of one Davidson. Garrity was to pay one-fourth of the purchase money, and McNamara was to pay the other three-fourths thereof, and one-fourth of the land, in a ten-acre strip off the west side thereof, was to belong to Garrity, and the balance was to belong to McNamara. Davidson was to deed the land to McNamara, and McNamara was to secure the payment of the purchase money by a mortgage back to him on the land; and when the purchase money should all be paid, McNamara was to convey to Garrity his ten acres of the tract. The deed and mortgage were executed, at that date, in conformity with this agreement. Garrity promptly paid one-fourth of the purchase money, and with the consent of McNamara took possession of his ten acres, fenced and cleared the same, and thenceforth has had the actual and exclusive possession thereof, and used and cultivated it, until the filing of the bill,--a period of more than twenty years. The mortgage has been fully paid and satisfied, and McNamara has recently denied Garrity's right in the ten acres, and now refuses to execute a deed therefor. These allegations were put in issue by the answer. The circuit court, after hearing the evidence, decreed in conformity with the prayer of the bill. Several objections are urged against this decree.

First--It is contended the bill was not framed with the view of having declared and enforced a trust which results or is created by construction, implication, or operation of law; but its real claim was to compel the performance of an alleged parol agreement to convey the land in controversy, and to this the Statute of Frauds, which is pleaded, is a defence. Assuming the frame of the bill to be as thus claimed, we can not yield our assent to the conclusion. The payment of the purchase money, taking possession under the contract, and the making of lasting and valuable improvements,--all of which distinctly appear here from the allegations,--take the case out of the operation of the Statute of Frauds. Blunt v. Tomlin, 27 Ill. 93; Mason v. Bair, 33 Id. 194; Keys v. Test, Id. 316; Fleming v. Carter, 70 Id. 286; Ramsey v. Liston, 25 Id. 114. But we are of opinion that the averment that Garrity promptly paid one-fourth of the purchase money may be regarded as equivalent to an allegation that that proportion of the purchase money was paid by him, and used directly in the purchase of the land; and such being its effect, that fact, although it was paid pursuant...