Merwitz v. Floring

• Decision Date: 23 September 1885
• Citation: 114 Ill. 554,2 N.E. 529
• Parties: MERWITZ v. FLORING.
• Court: Illinois Supreme Court

114 Ill. 554

2 N.E. 529

MERWITZ

v.FLORING.¹

Supreme Court of Illinois.

Filed September 23, 1885.

Appeal from Cook.

Richie, Esher & Judd, for appellant

L. V. Ferris and Simeon Straus, for appellee.

SCOTT, J.

The title to the tract of land in controversy is or was in William Heneke, and insane person. His conservator, Caroline Merwitz, had brought an action in ejectment against John Floring to recover possession of the land for her ward. That suit, it was expected, would be called for trial at the June term, 1884, of the superior court of Cook county, and thereupon the defendant in that suit filed this bill, alleging the land, although conveyed to William Heneke, was, in fact, bought by him and with his own money, but, by the fraud practiced by his wife, Dorothea, since deceased, and the former owner, Caroline Merwitz, the deed was made to William Heneke without the knowledge or consent of complainant, when it should have been made to him. To this bill the insane owner and his conservator were made defendants. An answer was filed by the conservator, for herself and on behalf of her ward, in which most of the principal allegationsof the bill are denied, and in which the conservator claimed the land for her insane or lunatic ward as his rightful property, free from any claim of complainant. A replication to the answer was filed, and the cause was submitted for hearing on the pleadings and the evidence, and the court rendered a decree finding the complainant, on or about the fourth day of March, 1878, bought the land in controversy; that the whole of the purchase money was paid by him; and that the deed to William Heneke was made without his knowledge or consent, and was made with intent to defraud him. It was thereupon decreed that, by the conveyance from Caroline Merwitz to William Heneke of the land, a resulting trust in such land was created in complainant, and it was ordered that the conservator should, within a certain period, convey the land to complainants, and, in default thereof, it was further ordered the master in chancery should make such conveyance, and the injunction that had previously been awarded restraining the conservator from the further prosecution of the ejectment suit was made perpetual. An appeal was allowed defendant, and, by an agreement of parties, made in open court, the appeal was taken to the supreme court in the Central grand division.

It appears that on the fourth day of March, 1878, the tract of land in controversy, and another 10 acres adjoining it, were both bought of Caroline Merwitz and her husband, since deceased. The deed for the 10 acres which are the subject of this litigation was made to William Heneke, and the deed to the other 10 acres was made to complainant. Both deeds were made on the same day as a part of the same transaction, and both were recorded at the same time. Two questions are made on the record: (1) Whether the land was bought and paid for with the money of complainant; and (2) whether the deed was fraudulently made to William Heneke without the knowledge or consent of complainant.

The evidence bearing on the question stated is very conflicting, and in some respects is unsatisfactory. Complainant claims he paid the entire purchase money of both tracts of land with his own money; a part of the purchase price consisting of $1,200, money previously loaned to the grantors, and the balance having been paid in money, $500 at the time of making the deed and the balance at another subsequent time. On the other hand it is claimed that Dorothea, then the wife of complainant, paid a large portion of the purchase money from her separate means, and had the deed made to her invalid son William Heneke, to make suitable provision for his maintenance in case of her death. Some explanation of the conduct of the parties may be found in the fact that William Heneke is the son of the deceased wife of complainant by a former marriage. He was always rather feeble in health, and by some of the witnesses termed a cripple, and years before these events transpired he became a confirmed idiot or harmless insane person. From the time of his mother's marriage with complainant, the boy resided with them up to the time of his mother's death, which occurred July 25, 1883.

It will be remembered both tracts of land were bought March 4, 1878, and soon after the making of the deed complainant erected a small house on the 10 acres deeded to the invalid boy, in which the parties afterwards resided. Shortly after the death of the boy's mother, he was sent away to the home of his aunt, who is now his conservator. It does not appear that during all the time complainant resided on this tract of land he ever made any complaint to his wife or to any one else that the title to this particular 10 acres was in William Heneke, until a day or two before the death of his wife, and not until he had become satisfied her death would soon take place. The evidence bearing on this branch of the case will be referred to again further on in this opinion.

Concerning the first question made, the difficulty lies in ascertaining whose money was in fact used to buy the land. Unless complainant's money was used in making the payment for the land, of course no resulting trust could arise in his favor. The law applicable to such cases is well understood and needs no discussion. The evidence to establish a resulting trust, after the lapse of so many years, should be of the most satisfactory character, and especially since so many of the parties who had most knowledge of the actual facts are now dead. It is obvious the evidence in this record is not of that character. That which tends to sup port complainant's theory of the case comes mostly from himself.

Without conceding that he is a competent witness under the statute, as against the conservator of the insane defendant, still if his testimony shall be considered with the other testimony in the case it fails to make any satisfactory case in his favor. As to the payment of the money by himself, his testimony has but little, if any, corroboration from any other source. There is some evidence that his wife paid some, if not all, of the purchase money for the tract of land conveyed to her son. In the conflict that exists it cannot be insisted with any show of reason that it is so clearly proven that complainant paid his own money for this particular tract of land that a resulting trust should be declared in his favor; at least it is not so in the opinion of this court.

As respects the other question raised, it may be said no such conspiracy as is alleged in the bill, to practice a fraud on complainant as to the making of the deed to Heneke, is proved. It is alleged that Caroline Merwitz, one of the grantors, and Dorothea, his wife, combined to defraud complainant, and procured the scrivener, one Senf, to prepare two separate deeds,-one for each 10 acres,-and exacted a promise from him that he should not inform complainant of the fact. So far as the wife of complainant is concerned, there is not a scintilla of evidence to connect her with any wrongful conduct in regard to the making of the deed to her son, either by herself or in connection with any other person. It is doubtful even whether she was in Chicago the day on which the deeds were executed. How that may be, however, matters little; for there is no proof from any source that she did anything to practice fraud on her husband. Nor is there any satisfactory evidence that Caroline Merwitz did anything to deceive or defraud complainant in the making of the deed to the boy, as was done. It is certain she had no personal acquaintance with the scrivener prior to the time she went there, as all parties agree, to procure him to make the deed. She had heard of him before, but had no personal acquaintance. The scrivener resided in Oak Park, and Mrs. Merwitz in Chicago, and complainant resided in the town of Proviso, not far from Oak Park. Complainant was personally well acquainted with the scrivener selected, and has been for many years. It is singular, indeed, if Mrs. Merwitz intended to perpetrate a fraud on complainant, she would go out of the city to a personal friend of complainant's, and to one who was almost a total stranger to herself, to procure his assistance to consummate the fraud. She says she was directed by complainant herself to go to Senf to have the deeds prepared, and that does not seem to be denied by him. The whole accusation against her has the air of the utmost improbability. The scrivener says that she asked him not to tell complainant two deeds were prepared,-one for each 10 acres,-and he says he promised her he would not. If he made any such promise, he did not observe it; for at the time the deeds were made, he swears he read both deeds to him, and undertook to explain them to him in German. It is said complainant is an ignorant man, but he was present when the deeds were executed, and no one would claim he was so ignorant he did not know there were two papers or deeds executed at the time. He admits in his testimony he knew two deeds were executed. It is also fully proved he went with the scrivener to the recorder's office at least a part of the way alone, when no one of the alleged conspirators were present, and if he wished any explanation why two deeds were executed, there was ample opportunity to obtain it. The witness Senf says, when he undertook to explain the deeds to complainant, at the house where they were executed, the parties talked so much to complainant, and drew his attention to such an extent, that he could not make him understand the explanation. But they left the house soon after, alone, to go to the recorder's office, carrying with them both deeds, and there was certainly nothing to prevent him from explaining the contents to the complainant had he wished to do so. It is all a sham and pretense that the scrivener was prevented from explaining the contents of the...