Rogers v. Simmons

• Decision Date: 30 September 1870
• Citation: 1870 WL 6380,55 Ill. 76
• Parties: MARY ROGERSv.BRIDGET SIMMONS et al.
• Court: Illinois Supreme Court

55 Ill. 76

1870 WL 6380 (Ill.)

MARY ROGERS

v.BRIDGET SIMMONS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Messrs. MACARTHUR, RICH & THOMAS, for the appellant.

Mr. LAWRENCE PROUDFOOT, for the appellees. Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the sixteenth day of November, 1850, one L. C. P. Freer, as trustee, under a deed of trust made by John Smith to said Freer, March 28, of that year, to secure payment of a note of that date to Alonzo Hamlin, for $93.75, sold and conveyed to said Hamlin the forty-one acres of land in controversy for fifty dollars.

April 3, 1851, Hamlin, upon a judgment recovered by him against Smith for some sixty dollars, for the residue of the note unsatisfied by the sale under the trust deed, caused an execution to be issued, and another tract of land of forty acres adjoining the above, was sold to him thereunder by the sheriff of Cook county for $63.31, and a certificate of sale issued to him, which was recorded June 28, 1851.

March 31, 1852, Smith executed a mortgage to Philip Rogers, of the land covered by the sheriff's certificate, to secure the payment of $325.

April 12, 1852, Smith left for California, and has not since been heard from, excepting a letter from him in the latter part of that year.

May 27, 1852, Mrs. Smith, the wife of John Smith, and mother of the appellees, died, leaving them in their minority.

June 1, 1852, Philip Rogers filed an affidavit in the county court of Cook county, stating that John Smith was in California, the death of Mrs. Smith, leaving the appellees without guardianship, and that they had sundry articles of personal property, which might be lost or destroyed unless a guardian was appointed to take care of the same; and letters of guardianship were issued to him June 7, 1852.

June 29, 1852, Hamlin sold and conveyed the said first named tract of land to Rogers for the expressed consideration of $200, by a quit claim deed, and, at the same time, assigned to him said sheriff's certificate of sale of the other tract, from which time Rogers was in possession of said lands until his death, December 13, 1856; and ever since his death, Mary Rogers, his widow and administratrix, and his two children Catherine and Philip, have been in possession of the lands and paid the taxes on the same from 1856 to 1863, both inclusive.

August 7, 1865, Hamlin and wife executed to the appellees a quit claim deed of the first named tract of forty-one acres, which was recorded August 12, 1865. The deed from Hamlin to Rogers was recorded September 5, 1865.

The bill in this case was filed May 16, 1866, by the heirs of John Smith against the widow and heirs of Philip Rogers, claiming that the said deed from Hamlin to Rogers was in trust for the complainants, and seeking to enforce its execution by a conveyance of the land described in it.

The trust is set up in the bill as follows: “That, on the twenty-ninth day of June, 1852, said Rogers went to Hamlin and informed him that he had been appointed guardian of said children, and wished to purchase said land for the benefit of his wards; and on these representations, said Hamlin executed a quit claim deed of said land to Rogers; that though the conveyance from said Hamlin to Rogers was absolute on its face, yet it was understood between them that it was a conveyance in trust to said Rogers as guardian of complainants, for the benefit of the wards of said Rogers,” which seems to be an express trust. All the evidence to support it is the sole unsupported testimony of Hamlin, and is, in substance, this:

“Philip Rogers applied to me in April or May, 1852, to purchase the certificate, and I told him what I would take for it. He did not buy at that time. On the twenty-eighth or twenty-ninth of June, of the same year, he again applied to me, and stated that Mrs. Smith was dead, and he was appointed guardian for the children, and wished to settle up the matter and save for the children what he could. I told him if that was the case, I would make a deduction from the price I had previously asked him. He stated that he had lent John Smith money, and taken security on the same property. The same statement was made on his first application. We made our arrangements, and I released the 41.05 acres purchased by me under the trustee's sale, and assigned the certificate of purchase under the sheriff's sale, to said Rogers. He paid me $150. I claimed over $200 as due me, but on Roger's representation that he wanted to save it for the children of Smith, I deducted fifty dollars.”

On cross-examination, in another deposition of his in the case, he states it: “I let him have the property for fifty dollars less than I asked him on the first interview, because he stated he was guardian, and wanted to save something, or all he could, for the children.”

The sufficient answer to the claim set up in this bill would seem to be, the citation of the provision in the statute of frauds and perjuries, that, “All declarations or creations of trusts, or confidences of any lands, tenements...