Roche v. Roche

• Decision Date: 07 February 1919
• Docket Number: No. 12442.,12442.
• Citation: 286 Ill. 336,121 N.E. 621
• Parties: ROCHE et al. v. ROCHE.
• Court: Illinois Supreme Court

286 Ill. 336

121 N.E. 621

ROCHE et al.

v.ROCHE.

No. 12442.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 7, 1919.

Appeal from Circuit Court, Coles County; Walter Brewer, Judge.

Bill by John J. Roche and others against Thomas A. Roche. From decree rendered, complainants appeal. Affirmed.Bryan H. Tivnen and Craig & Kinzel, all of Mattoon, for appellants.

George M. Thompson, of Bement, and Edward C. Craig, of Mattoon, for appellee.

CARTER, J.

This was a bill filed by appellants in the circuit court of Coles county for the partition of 160 acres of land in said county and 80 acres in Piatt county. The appellee answered, admitting that 160 acres in Coles county should be partitioned as prayed, but denied that the 80 acres in Piatt county should be so partitioned. After the pleadings were settled and hearing had in open court before the chancellor, a decree was entered providing for a partion of the Coles county land but ordering that the bill as to the partition of the 80 acres in Piatt county be dismissed for want of equity at appellants' costs. From that decree this appeal was taken.

It appears from the record that in 1887 John Roche signed and acknowledged a deed for the 80 acres of land here in question to his son Thomas A. Roche. From the pleadings and briefs of appellants it is contended that this deed was obtained by said son from his father through undue influence; that the conveyance was made to defraud creditors; that, if the deed was ever delivered, a resulting trust arose thereunder in favor of appellants. It also seems to be argued that there was a constructive trust, and also that under an express agreement of trust appellants had an interest in said 80 acres. Appellee in his answer and in the evidence produced in the record denies all of these claims.

The record shows that John Roche, the father of appellants and appellee, died at about the age of 88 years on May 21, 1916, in Coles county. Before purchasing the land in Coles county, he had lived in Piatt county and had originally owned there 96 acres of land, which is frequently called in this record the 100-acre tract, and later purchased, about 1880, the south half of the southeast quarter of section 12, township 16 north, range 5 east, in Piatt county, subject to a mortgage of $1,400. This was the 80 acres in litigation. It was south of the 96-acre tract and adjacent thereto. Roche's wife died in 1881. There were born to them twelve children, nine of whom were surviving at her death and were still surviving at their father's death and at the time of the trial in the circuit court. These children were as follows: Mary Curry, 61 years old; Thomas A. Roche, 59 years old; Richard Roche, 57 years old; Margaret Parker, 53 years old; Matthew Roche, 51 years old; Alice Redington, 49 years old; John Joseph Roche, 47 years old; Michael Roche, 45 years old; Nora Roche, 41 years old. There is evidence showing that before the death of the wife she stated to her husband that she would like the son Tom to have the 80 acres in question. In 1885 Richard, then 24 years old, had left home. Thomas, then 26 years of age, was living with his father on the Piatt county land and assisting in farming it. The two appellants, John J. and Michael, were then, respectively, 12 and 14 years of age. The evidence tends to show that at about this time Roche said to a neighbor, Loveless, that he believed his son Thomas was thinking of leaving home; that he did not know how to get along without him in carrrying on the farm; that if Thomas would stay at home on the 80-acre farm he would give it to him. On of the sisters, Mrs. Parker, testified that she heard her father in 1885 tell her brother Thomas that if he would stay and help him he would give him this 80 acres. Mrs. Parker was then unmarried and living at home. Her father also told her some ten years later that he had given Tom writings for the 80 acres. Another sister, Mrs. Redington, testified that she heard her father tell Thomas that if he would stay with him on the home place or on the 80 until it was paid out he might have the 80; that this conversation occurred in 1886, two years before Thomas was married. Loveless' testimony is to the effect that on April 20, 1887, a short time after he had the talk with Roche about giving the deed to the 80 to Tom, Roche went to Decature and had the deed here in question drawn, executed, and acknowledged; that a day or two thereafter he met Roche at a road crossing, and while they were talking together Tom came up in a buggy, and during the conversation Roche said to his son Tom that he had now given him a deed for the 80; that he would like to farm 30 acres of it with the assistance of his younger sons and help pay off a $1,400 mortgage then on the 80 and which in said deed he had agreed to pay off. Counsel for appellants contend that Loveless' testimony, if it is to be fully relied on-which they question-should be construed to mean that Tom went with his father to Decatur when the deed was drawn. We do not think this is a necessary inference from his testimony. True, he said that the father in the first conversation stated that he believed, in order to have Tom stay with him, he would take Tom and go to Decatur and have the deed drawn conveying to him the 80 acres, but the evidence of Loveless, fairly construed, is not to the effect, as argued by counsel for appellants, that when they met at the road crossing the father and his son Tom were just returning from Decatur together after the execution of the deed. His evidence shows that he met the father at this road crossing on the day in question, and that Tom was not with him, but joined them thereafter, driving up in a buggy. It appears from the evidence that the 80 acres in question was divided by a railroad, leaving about 30 acres on one side of the right of way and 50 acres on the other. Loveless testified that the father told Tom at that time that he did not want him to tell the other children about the deed and not to put it on record; that the deed was all right and conveyed the property to him; that he could record it at any time, even after the father died, and it would be good; that he wanted him to have the 80 but did not want to have trouble over the deed with the other children. The evidence tends to show further that the father farmed the 30 acres-the part of the 80 cut off by the railroad-along with the rest of his land in Piatt county from 1887 until 1904, when, for the purpose of getting more land for the same amount of investment, he sold the 96-acre tract and reinvested the proceeds in 160 acres north of Mattoon, in Coles county, and removed with the appellants, and possibly some of the younger children, to the 160 acres, where he resided with the appellants until his death. Apparently each of the appellants lived on one of the 80's of this 160 after being married, and the father spent part of his time with one and part with the other.

The evidence shows that the day, month, and year on the deed were blank. It was evidently drawn on a blank printed form, but the line for the date just above the signature of John Roche was not filled in, and reads: ‘Dated this ... day of ..... A. D. 188..’ The evidence tends to show that the deed was in the handwriting of one Burroughs, who was then in the banking business in Decatur, and acknowledged by one of his employés, John B. Prestley, a notary public. Burroughs had been dead for some years at the time of this hearing. Prestley testified that the acknowledgment was taken by him, but that he had no independent recollection, outside of his handwriting and the seal, with reference to this transaction, although he was sure he took the acknowledgment. The deed was acknowledged April 30, 1887.

In 1913 proceedings were started by one of John Roche's daughters, in the county court of Piatt county, asking to have a conservator appointed to look after the father's property. It would appear from the record that there had been some discussion among the children about this before the petition was filed. At any rate, it seems that appellee heard something about the discussion some months before the petition was filed, and late in 1912 filed the deed in question for record in the recorder's office in Piatt county. The evidence tends to show that he advised with some one about filing this deed before he filed it; but it is not clear, as claimed by counsel for appellants, that he was advised by an attorney to file it, and whether the person he consulted was an attorney or not is uncertain from the testimony. Appellants testified that, while the conservatorship proceedings were pending, they came up from Coles county to Piatt county to talk with their brother Tom about these proceedings; that they were telephoned to either by appellee or one of the sisters to come, and while there they heard for the first time from appellee that he had a deed for the 80 and had filed it, and that he told them that, if they would stand by him and resist the conservatorship proceedings, he would stand by them as to the division of the property and put in his 80 along with the two 80's in Coles county and divide with them equally, dollar for dollar. Appellee denied that he requested them to come from Coles county to discuss the conservatorship proceedings, or that he requested them to stand by him and said he would stand by them and divide the 80 along with the Coles county land. He testified that the conversation, so far as it took place, was started by them, and they requested him to stand by them in the conservatorship proceedings, rather than he making the request of them. There is testimony by a son of appellee which tends to support, in some degree, his father's version as to these conversations. While these conservatorship proceedings were pending, the father came to Piatt county to stay for a time with appellee. Mrs. Ryan, a daughter of appellee, testified that...