Smith v. Willard

• Decision Date: 24 October 1898
• Citation: 51 N.E. 835,174 Ill. 538
• Parties: SMITH v. WILLARD.
• Court: Illinois Supreme Court

174 Ill. 538

51 N.E. 835

SMITH

v.WILLARD.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Pike county; Thomas N. Mehan, Judge.

Bill by Eliz B. Smith against John Willard. There was a decree for defendant, and complainant appeals. Affirmed.A. G. Crawford, for appellant.

W. E. Williams and W. L. Coley, for appellee.

This was a bill in chancery filed by Eliza B. Smith against John Willard to set aside a sheriff's deed upon the S. E. 1/4 of the N. E. 1/4 of section 32, township 7 S., range 2 W., in Pike county, Ill., bearing date July 19, 1897.

The facts as alleged in the bill, and substantially shown in the testimony upon hearing of the cause, were that about the year 1888 the complainant inherited some land in Calhoun county from her mother, which land she sold, receiving $2,600 in cash. A few months afterwards, in September, 1888, having in mind the purchase of a farm, she and her husband looked at the place of one George Williams, containing 120 acres, including the land in controversy. The concluded to buy it, and the complainant paid to the wife of Williams $25 earnest money, taking a receipt therefor in her own name. A short time afterwards she drew $1,500 of the money she had received from the sale of her mother's estate, and paid it to Williams, that being the consideration for his land. There is some conflict in the evidence as to the circumstances regarding the execution of the deed. Complainant says it was executed a number of days after the money was paid to Williams, and that her husband, on account of her illness, looked after the transaction; that she told him she wanted the deed made to her; that he brought home the deed, and placed it in the bureau drawer in the house, telling her it was all right, although no particular conversation seems to have occurred between them at that time as to whether or not he had complied with her instructions in taking the deed to her. The vendor of the land, Williams, testifies he made the trade with the husband, and was told by him the deed should be made to him, the husband of the complainant; that complainant and her husband wanted the deed made to the husband, and after so executing it he went to their house and received payment in checks for the land, and delivered the deed to one of them in the presence of both. His recollection, as stated, is that the deed was handed to the wife, the complainant. The husband was dissipated, and in after years became somewhat involved in debt, among other indebtedness owing about $300 to the defendant, John Willard, for a threshing outfit. George Williams, who had sold the land above mentioned, was a surety on the note signed by Smith. He testifies he signed the note believing Smith, the husband of complainant, to be the owner of this 120 acres of land, and Willard also believed the same to be true. A number of witnesses, however, old residents and neighbors of the complainant, testified that the land was generally known in the neighborhood as her land, and it is shown that Willard lived only a few miles away, but was apparently not well acquainted in her neighborhood. Complainant states that shd did not discover the deed which had been executed by Williams and his wife for the land was made to her husband until the month of May, 1895,-nearly seven years after its execution. During this time it was deposited in the bureau drawer in their house, with other papers. The house contained only two rooms, and complainant had at all times access to the place where the deed and other papers were kept. Her attention was called about this time, by her brother-in-law, to the fact that her husband was involved in debt, and she was asked about the deed to the land, and says she found for the first time, upon examination, that the deed executed seven years before had been made to her husband instead of to her. She requested her husband to execute to her a deed to the land, which he did, bearing date June 6, 1895, which was not recorded, however, until March 30, 1896.

At the November term, 1895, of the circuit court of Pike county, John Willard, the defendant, obtained a judgment against John Smith and George Williams for $341.75. Execution was issued March 5, 1896, and the 40 acres of land in controversy were sold April 18, 1896. At the time and place of sale appellant, through her attorney, gave oral notice to the defendant and others that appellant claimed to own the land in controversy, and that the same was purchased with her money. The land was bid in by the defendant, Willard, and his certificate of purchase afterwards ripened into a deed. In August, 1897, this bill was filed by complainant to set aside the sheriff's deed as a cloud upon her title. Upon a hearing upon the bill, answer of the defendant denying the material allegations to the bill, and replications thereto, the chancellor found that the allegations in the bill were not sustained by the proof, and that she was not entitled to the relief asked for, and ordered her bill to be dismissed for want of equity. A decree to this effect was so entered, and for the purpose of reversing that decree this appeal is prosecuted to this court.

PHILLIPS, J. (after stating the facts).

Under the assignment of error in this case it is urged and argued by appellant that the circuit court erred in dismissing her bill, for the reason the evidence offered was sufficient to entitle her to a decree setting aside the deed of the defendant as a cloud upon her title. It is also urged the land in question having been purchased by the husband with money belonging to his wife, a resulting trust was established in her favor.

From the record in this case there can be no question but the money of appellant was used in the purchase of these lands. The rule is well established, if the husband purchase lands with the separate estate of his wife, or with proceeds or accumulations from it, and takes the title in his own name, a trust results to the wife. 1 Perry, Trusts (3d Ed.) § 127; Lathrop v. Gilbert, 10 N. J. Eq. 344;Cass v. Demarest, 37 N. J. Eq. 393; Fillman v. Divers, 31 Pa. St. 429; Hay v. Martin (Pa. Sup.) 14 Atl. 333;Radcliff v. Radford, 96 Ind. 482. The whole foundation of a resulting trust is the ownership and payment of purchase money by one and the taking of title in the name of another, and the presumption, founded on such transaction, of the intention of the parties that such trust should result. In this case, where the purchase money was that of the wife and the title taken in the name of the husband, there is a disputed question of fact as to whether or not she consented or agreed that the title should be so taken. She says she had no knowledge of such fact until seven years after the execution of the deed. Whether or not appellant directed her husband to have the deed executed to her, it is apparent after that time she had ample opportunity to know, and in justice to third interested persons she should have known, that her directions were complied with. She was a woman possessing the advantages of a common and boarding school education, and said to be shrewd in business matters. The deed in question was for seven years in...