Rann v. Rann

• Decision Date: 16 June 1880
• Citation: 1880 WL 10054,95 Ill. 433
• Parties: JOHANNA RANN et al.v.PATRICK RANN.
• Court: Illinois Supreme Court

95 Ill. 433

1880 WL 10054 (Ill.)

JOHANNA RANN et al.

v.PATRICK RANN.

Supreme Court of Illinois.

Filed at Ottawa Jun. 16, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Grundy county, the Hon. H. GOODSPEED, Judge, presiding.

Mr. M. T. MALONY, for the appellants:

Laches can not be imputed to minors, and everything must be proved against them and nothing admitted. Smith v. Sackett, 5 Gilm. 534; Hill v. Ormsbee, 12 Ill. 166; Hamilton v. Gilman, Id. 266; Tuttle v. Ganet, 16 Id. 354; Reddick v. President, etc., State Bank, 27 Id. 148; 18 Id. 48; Chaffin v. Heirs of Kimball, 23 Id. 36; Tibbs v. Allen, 27 Id. 129.

There can be no partition of lands unless the complainant has a legal title to the same. Ross v. Cobb, 48 Ill. 111; Schneider v. Seibert, 50 Id. 284; Williams v. Wiggand, 53 Id. 233.

Thomas Rann, one of the defendants and a brother of complainant, being directly interested in the event of the suit, was incompetent as a witness to testify to anything that would affect the interest of the minor heirs. Rev. Stat. 1874, p. 488, sec. 2.

Appellants claim that such parties are relegated back to the common law, and are not disqualified to testify whenever they are interested. It makes no difference whether the party is plaintiff or defendant when his testimony affects a minor heir. Fischer v. Fischer, 54 Ill. 231; Mixel v. Lutz, 34 Id. 382; Hill v. Ormsbee, 12 Id. 166; Rector v. Rector, 3 Gilm. 105.

One partner can not testify against another even, since the act of 1861 removing the disqualification of witnesses. Alexander v. Crosthwaite, 44 Ill. 349; Brown v. Hurd, 41 Id. 122.

The true test of interest is, will the witness either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. New England Fire and Marine Insurance Company v. Wetmore, 32 Ill. 221; Kennedy v. Evans, 31 Id. 258.

Mr. P. A. ARMSTRONG, for the appellee:

The parol partition was valid. Tomlin v. Hilyard, 43 Ill. 300; Nichols v. Paddlefield, 77 Id. 253; Shepard v. Rink, 78 Id. 188.

A court of equity will not decree a conveyance from a party before his vendor's lien is satisfied. 3 Sugden on Vendors, 117; Boynton v. Champlin, 42 Ill. 61.

“A resulting trust arises from the fact that the money of one person has been invested in land, the conveyance of which is made in the name of another. The trust is raised in favor of the party whose money has been used, with or without his knowledge, in the purchase.” Bruce v. Raney et al. 18 Ill. 67; Remington v. Campbell, 60 Id. 516; Smith v. Smith, 85 Id. 189.

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

This was a bill for partition, filed by Patrick Rann, against his brother Thomas Rann, Johanna Rann, the widow of his brother James, and James, Hannah M. and Catherine F. Rann, his children and heirs, and Mathew Montgomery, Patrick Lamb, John Weldon and the board of trustees of schools, township 31, range 6, in Grundy county, and to have resulting trusts executed, and for the removal of clouds on the title to a portion of the lands named in the bill.

On a hearing in the circuit court the relief sought was granted. An appeal was taken to the Appellate Court, where the decree was affirmed, and the case is brought to this court and a reversal is urged.

The three brothers, Thomas, James and Patrick Rann, in 1857, desiring to purchase, on time, three forty acre tracts of the school section, but not having other lands to pledge as security for the payment of the purchase money, procured their cousin, John Weir, to purchase for them in his name, they to make the payments as they should fall due. He executed no writing to evidence the arrangement. The three brothers worked, farmed, bought and sold stock together and paid for the land from the proceeds of their joint efforts.

In 1862 appellee enlisted in the military service, and sent home to his brothers his pay at different times, which was applied on the purchase of this and other lands. There is evidence tending to show that appellee reduced the forty acre tract in controversy to cultivation, and it was generally known as his. James moved on and occupied another one of these forty acre tracts with his family.

In 1865 the three brothers purchased another eighty acre tract on section sixteen, paying $900 to Murphy, who had purchased of the school trustees, and assuming to pay the school fund the sum Murphy owed on his purchase, and Patrick Lamb and John Noonan were substituted as purchasers, and gave the required mortgage security, the Ranns not having acquired the title to the one hundred and twenty acres purchased in the name of Weir. Lamb became the nominal purchaser of one forty and Noonan the other. Thomas and Patrick lived with James, and all three improved and cultivated their lands, then amounting to two hundred acres.

In September, 1868, the three brothers purchased two more tracts of land, one on section fifteen and the other on section sixteen, in the same township, from S. L. Oaks, for $3000. This purchase embraced one hundred acres, making three hundred in all, owned in the same manner, and to which they held no legal title or even written agreements. The evidence, we think, sufficiently shows that when this last purchase was made the three brothers verbally agreed to a division of these lands, by which James was to have one hundred and twenty acres, including the tract on which he resided. Thomas was to have one hundred acres on which he resided. Appellee was to have eighty acres, including the forty in controversy, and James was to pay him $600, to make his share equal. Lamb conveyed the sixty acres on section fifteen to Thomas, and Noonan conveyed the forty acres on section sixteen to James, and they then paid $1000 on the purchase, and Thomas and James gave notes and mortgages on the portions thus conveyed to them for the balance of the purchase money.

Appellee, in the winter of 1869-70, being threatened with a prosecution for defamation of character of some persons in the neighborhood, fled the country. He remained away until after James' death, in July, 1876. When he left, there were, in the hands of his brothers, horses, cattle and other property of considerable value, which he owned. They sold a number of the horses, the proceeds of which were applied to paying for the lands, and James and Thomas divided his cattle, the unsold horses and other property. In 1873, not having heard from appellee, supposing he was dead, they procured deeds from Weir and Lamb for one hundred and sixty acres of the lands. James received a deed for the forty in controversy, which had been understood to belong to appellee, and Thomas received a deed to appellee's other forty, which he submits without any contest to convey to appellee. When they procured the deeds they represented that appellee was dead, and agreed that if he was not, they would convey to him his share.

Lamb, in conveying, made a mistake in the description of the land, and was made a party to the bill that the description might be corrected. Weldon held the legal title to one forty sold by Oaks to the Ranns, and to procure a conveyance from him he was made a party. Montgomery was made a party to correct a mistake in conveying a portion of the land, and the trustees of schools as mortgagees of a portion of the lands, and the widow and heirs of James, were...