Wright v. Wright

• Decision Date: 26 October 1909
• Citation: 242 Ill. 71,89 N.E. 789
• Parties: WRIGHT v. WRIGHT.
• Court: Illinois Supreme Court

242 Ill. 71

89 N.E. 789

WRIGHT

v.WRIGHT.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Circuit Court, Jackson County; William N. Butler, Judge.

Suit by Richford Wright against Elizabeth Wright. From a decree for defendant on her cross-bill, complainant appeals. Affirmed.

William A. Schwartz, W. F. Ellis, and James H. Martin, for appellant.

McElvain & Glenn and H. Clay Horner, for appellee.

VICKERS, J.

Richford Wright, appellant, filed a petition in the circuit court of Jackson county to have the dower and homestead of Elizabeth Wright assigned in certain lands of which Ellis Wright, father of appellant and husband of appellee, died seised. Elizabeth Wright answered the petition, admitting that Ellis Wright, her husband, died seised of all of the lands described in the petition except the west half of the southwest quarter of section 25, township 7, south, range 4, west, of the Third principal meridian, which said tract appellee averred did not belong to Ellis Wright, but that in equity said 80 acres belonged to appellee. Appellee then filed a cross-bill, in which she alleges that she was married to the deceased, Ellis Wright, in May, 1866, and lived with him as his wife until his death, in September, 1907. She charges in her cross-bill that at the time she married Ellis Wright she had money in her own right, which she had received as a pension from the United States government on account of the death of Benjamin Fannin, her former husband, which occurred on October 13, 1863, while said Fannin was a private soldier in Company A, Thirty-First Illinois Infantry; that appellee had drawn a pension at the rate of $8 per month from the date of Fannin's death until she married Ellis Wright, in 1866; that her money was prior to the date of her marriage to Ellis Wright loaned to Hampton Crawford, whose note, signed by said Crawford and one Crain as personal surety, for $300, was then held as the separate property of appellee. She charges in her cross-bill that soon after her marriage to Ellis Wright. he having learned that she had this money loaned, insisted that she call it in and invest it in land; that she complied with her husband's request and collected the Crawford note, and gave the money to her husband, who in a short time thereafter purchased the 80 acres of land now in controversy, using for that purpose $120 of appellee'smoney, which was the full consideration paid for said land; that Ellis Wright took the deed to said land in his name; that the appellee and her husband moved onto said 80 acres and occupied it as a homestead until the time of her husband's death, September 30, 1907, and that appellee still so occupies said premises; that her said husband told appellee, before he bought this land, that it would be hers and that it would not burn up nor could it be stolen; that after the land had been bought and the husband had taken the deed to himself he often told the appellee that it would be a home for her, and that he would change it. The cross-bill prays for the conveyance of the legal title to be made to appellee, on the theory that a resulting trust existed which appellee is entitled to have executed by a conveyance to her of the legal title.

Richford Wright, a son of Ellis Wright by a former marriage and only surviving child, filed an answer to appellee's cross-bill, denying that appellee paid the consideration for said land or any part of it, and charged that his father, Ellis Wright, paid the whole of said consideration with his own money, and that he died holding both the legal and equitable title to said land. A replication to this answer was filed, and the issue thus joined was tried by the circuit court of Jackson county upon evidence presented in open court and a decree rendered in accordance with the prayer of the cross-bill, ordering a deed made conveying to appellee the legal title to the 80 acres involved within 30 days, and, in default, that the master execute such deed. The court also decreed that appellee have dower assigned to her in other real estate of which Ellis Wright died seised. From this decree Richford Wright has appealed to this court, and assigns error upon that branch of the decree which grants appellee the relief prayed for in her cross-bill.

The following is a statement of the principal facts proven on the trial: Certified copies of pension certificate and vouchers were introduced in evidence, which show that Elizabeth Fannin, widow of Benjamin Fannin, drew a pension at the rate of $8 per month from the 16th day of October, 1863, to May 31, 1866, a total of $252. She loaned $300 to Hampton Crawford, who then lived in Perry county near the Jackson county line. Riley Crawford, a man now about 80 years old and a brother of Hampton Crawford, testified that he knew appellee prior to her marriage to Ellis Wright; that he knew that his brother, Hampton, had $300 borrowed from Elizabeth Fannin; that he was at his brother's house when appellee came and demanded that his brother pay the note; that she said her husband wanted her to collect the note and buy a piece of land; that his brother, Hampton, told her, in his presence, that he did not have the money, but would get it in a few days and bring it to her, and that afterwards he saw the note in his brother's possession and it was payable to Elizabeth Fannin, and that the note was burned in witness' house. This witness testifies that he knew the note was paid from having seen it afterwards in his brother's possession. A deed to the land in question from Eliza A. Belsha, Francis S. Smith, and Mary C. Smith to Ellis Wright, dated August 1, 1867, was offered in evidence.

Mary Richards, a sister of appellee, testified that after appellee married Wright she visited them very often; that she was at their house almost all of the time; that she remembers the circumstance of the purchase of the land in controversy; that her sister had money loaned which she had received as pension on account of the death of her first husband; that she was present and saw her sister give the money to Wright, and that afterwards Wright told her he had bought this land with that money; that Wright told his wife that it was much better to buy land, because it would not burn up and no one could steal it, and that it would be a home for his wife; that he always called his wife ‘woman’; that he said in her presence: ‘Woman, I bought this land with your money, but the deed is made in my name. I can change it at some other time.’ She testifies that the consideration paid for the land, according to her recollection, was somewhere between $125 and $140. The exact amount she was unable to remember. This witness in the second deposition given by her states that she often heard Wright say he would deed the land to appellee, but, in order to do so, it would be necessary for him to deed it to a third person, and have said third person convey to appellee, and that he was afraid to do that because such third person might be unwilling to convey to appellee. She testifies that she was present when Crawford came in the afternoon and paid the appellee the money, and that it was given to Wright that evening.

Solden Johnson testifies that he went with Ellis Wright when he made a trip to Chester to see about buying this land; that afterwards he heard Wright talking about the trouble he had in buying the land, and he said that Robert Grant had possession under an old mortgage which was not good and that he could defeat Grant's claim; that this was in the presence of appellee, and appellee said that she was glad of that; that, if they got that land, they would get all she had. The mortgage referred to was a mortgage executed by Samuel...