author: Mr. Justice Scholfield

text:
    The Citizens’ Gaslight and Heating Company v. A. O. Granger & Co.

      Filed at Springfield October 6, 1886.

    1. Pleading and evidence—recovery under common counts. Where a party furnishes materials and expends money for the use of another, at his request, and upon the false representations of the latter as to a state of facts which, if true, would make it the duty of the former to furnish such materials and pay out such money on a consideration already received, he may, on discovery of the falsehood of the representations, maintain an action for such materials and moneys expended, under the common counts.
    2. A manufacturer sold and put up for a gas company the materials and apparatus for making gas, warranting their quality and soundness, which shortly after were destroyed by fire. The agent of the company falsely represented to the manufacturers that the loss was occasioned by defects in the machinery they had sold and supplied, under the belief of which the latter furnished other machinery in lieu of that destroyed, intending to make no charge therefor, and expended money in putting up the same: Held, that •on account of the fraud, the manufacturer had the right to sue the company for the materials so.furnished and the money so expended, under the com.mon counts.
    3. Practice—time to object—as to the form of action. If indebitatus ■assumpsit is brought upon a cause of action, when it should have been an action on the case, the objection will be considered as waived, if not urged ■at the first opportunity, so that it may be obviated by an amendment, changing the form of action.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    This was an action of assumpsit, brought by A. 0. Granger & Co., of Philadelphia, against the appellant. The declaration contained the common counts only.
    Appellees were builders of gas apparatus for the manufacture of “water gas,”—a patent process for making gas. Appellant bought a set of apparatus of appellees. The set included a superheater, generator, condenser, and various tanks, pumps, pipes, etc. They were placed in the works, and in a short time, from some unknown cause, the works took fire and burned up. The works were rebuilt, and new machinery of appellees’ make, so far as new machinery was necessary, was used. In a short time another fire occurred, and again from an unknown cause. After some investigation of the causes, Mr. Hauk, the secretary of appellant, wrote to appellees, saying: “We very much regret to inform you that we have met with another serious loss. Our entire works burned down here Tuesday night, the 17th inst.; loss, heavy; cause of fire, the bursting of a pipe from small tank or pump to generator. The pressure you recommended (340 lbs.) was too much.” Afterward, Mr. Hauk went to Philadelphia, to appellees’ place of business, and it is claimed Mr. Hauk there made similar statements as to the cause of the fire, and that, ■on the strength of such statements, appellees were induced to ■and did give appellant various apparatus to repair the works destroyed by fire. Appellees claim the- statements made by Mr. Hauk as to the cause of the fire, were false, and therefore seek to avoid the contract under which they furnished the goods, and, under the common counts in assumpsit, recover the reasonable value of the goods. Appellant admits the writing of the above mentioned letter by Mr. Hauk, but denies that Mr. Hauk made any misstatements to appellees, either in the letter or orally, and says that, in any event, appellees can not recover on the common counts.
    After learning that no gas was being made when the fire occurred, that there was no pressure on the pipe, and that it was not in fact bursted, appellees made demand of payment of appellant, and, on refusal, brought this suit. The following are the items for which a recovery was sought:
    Machinery and apparatus.....$56.00
    Same -------- 40.00
    Same -------- - 1000.00
    Cash paid out for fittings - 22.70
    Cash paid for labor......58.50
    Cash paid for fittings - - - - - 37.38
    Cash paid for railroad fare - - - - - 9.60
    $1224.18
    Credit by gauges returned - 7.00
    $1217.18
    A trial was had, resulting in a verdict and judgment in favor of the appellees, for $1215.18, which was affirmed by the Appellate Court, and the record is brought to this court by appeal.
    Messrs. Herrick, Lucas & Spencer, for the appellant:
    Appellant having got the goods on a contract not to pay for them, it can not be held liable on a contract to pay for them. The two could not exist at the same time. Appellees admit the express contract was, that appellant was not to pay for the goods. But, as we understand, appellees claim the goods were procured tortiously, and they waive the tort, and sue for the value of the goods. That can only be done when the wrongdoer has converted the goods into money,—then he is liable for goods had and received. Creel v. Kirkham, 47 Ill. 344; Johnson v. Salisbury, 61 id. 316; Kellogg v. Turpie, 2 Bradw. 59; 93 Ill. 265.
    When a party rescinds a contract on the ground of fraud, such rescission must be total. Bowen v. Schuler, 41 Ill. 193; Ryan v. Brandt, 42 id. 78; King v. Mason, id. 223; Kellogg v. Turpie, 2 Bradw. 55; 93 Ill. 265.
    The only answer that appellees make to this is, that it is only a variance, and therefore the objection can not be urged in the Appellate Court for the first time. The objection that the action is misconceived is fatal at any stage. 2 Greenleaf on Evidence, 106; Gay v. Keys, 30 Ill. 419; Larsen v. Mitchell, 41 id. 104; Creel v. Kirkham, 47 id. 3; Johnson v. Salisbury, 61 id. 317.
    Mr. A. E. DeMange, for the appellees:
    It seems to us that no verdict was ever rendered that did more substantial justice between the litigants than this one.
    The court can readily see that the jury could not have found otherwise, and unless the record discloses some error of so grave a nature that it "manifestly prejudiced the rights of appellant, the judgment of the court below should not be disturbed. Ryan v. Donnelly, 71 Ill. 100; Life Ins. Co. v. Foote, 79 id. 361; Life Ins. Co. v. Beck, 74 id. 165; Stevison v. Earnest, 80 id. 513; Lowery v. Costes, 91 id. 182; Strohm v. Hayes, 70 id. 45.
    Where there is a total failure of consideration, or where money is paid or goods furnished under a misapprehension of facts, and they are converted or used by the defendant, the law raises an implied promise to pay. 2 Greenleaf on Evidence, sec. 108; Bradford v. City, 25 Ill. 359; Longchamp
      v. Kenney, 1 Doug. 137; Gray v. Griffith, 10 Watts, 431; Bladlock v. Phillips, 38 Ga. 216; Allsbrook v. Hath, 3 Sneed, 454; Mann v. Stowell, 3 Chand. 243; Cooper v. Helsabeck, 5 Blackf. 14.
    When there is a variance between the declaration and the-evidence, and no objection interposed to the evidence in the-court below, the objection can not be raised in an appellate-court. Brannan v. Trauss, 75 Ill. 234; Roberts v. Corley, 86 id. 184; Reynolds v. Palmer, 70 id. 290; Wilhelm v. People, 72 id. 468; Fire Ins. Co. v. Parrish, 73 id. 166; Railroad Co. v. Chester, 62 id. 236; City v. Kimball, 90 id. 355; Railroad Co. v. Beckemier, 72 id. 267.
   Mr. Justice Scholfield

delivered the opinion of the Court r

We are unable to perceive any valid objection to a recovery-under the common counts.- Appellees furnished materials- and expended money for the use of appellant, upon its request. At the time that request, was made, the agent of appellant falsely represented to appellees that a state of facts existed under which it was the duty of appellees to furnish the materials and expend the money for the use of appellant by virtue-of the terms of a prior contract, whereby appellees were obligated to sell and deliver to appellant, machinery, etc., of a-particular quality and soundness. If that representation had. been true, appellees were already paid for the materials furnished and money expended; but not being true, the amount remained to be paid by appellant. There was no mistake- or misrepresentation in regard to the use to which the materials furnished should be applied, and for which the money was to be expended,—there was simply falsehood^and misrepresentation in regard to whether facts existed making it the duty of appellees to furnish these materials and pay out-that money on account of a consideration already received. The proof of the delivery of the materials and the payment. of the money made a prima facie case, entitling the plaintiff to recover, and that case was not rebutted by showing that the delivery and payment were pursuant to the old contract, when it was also shown that the facts which were represented to exist, whereby it would have been the duty of appellees to have made the delivery and payment under that contract, did not, in fact, exist, and that the representations of appellant’s agent in that regard were false and fraudulent. The defence fails, because it is based on falsehood and fraud. The case, in principle, is as if A goes to a clerk in a store or shop and tells him to let him have certain goods—that he has already made payment therefor to the principal or to another clerk. The clerk, believing him, delivers the goods. Subsequently the clerk learns that the representation that he had paid for the goods is false, and thereupon A is sued, on the common counts, for the value of the goods. The contract-is fully performed upon the one side, and nothing remains upon the other but to make payment. The fact that, by willful misrepresentation, the creditor is at first deceived into the belief that payment has already been made, can make no difference. It was never intended the goods and money should be given away, or that anything but money should be accepted in exchange for them.

But if the form of the action should have been in tort, the objection on that ground should have been specifically urged at the first opportunity, for, under the provisions of section 23 of chapter 110, entitled “Practice,” (2 Starr & Curtis’ Stat. 1787,) it was competent, at any time before final judgment, to so amend the pleadings as to change the form of action from assumpsit to case. The objection is of a purely formal character, and not having been urged in apt time, is to be deemed as waived.

An objection is urged in regard to the improper admission of certain evidence; but, on examining the record, we think the objection is based on a misapprehension. The ruling of the court seems to have been properly limited, and no question of law, in that respect, is presented.

The main controversy in the trial court was one of fact. The judgment of the Appellate Court precludes further question in that regard, and we discover no error of law of sufficient importance to require a reversal of the judgment. -

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Peoria, Decatur and Evansville Railway Company v. Robert N. Forsyth.

      Filed at Springfield October 6, 1886.

    Limitation—act of 1839—as to the payment of taxes. In order to successfully invoke the limitation law of seven years’ possession and payment of taxes, under claim and color of title, against the paramount owner, the party relying upon the bar must show that he has paid all taxes legally assessed on the premises during the seven years. A neglect or failure to pay a special town tax for one of the seven years is fatal to a defence under such statute, although such special tax may have been dropped from the tax books.
    Appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Stevens, Lee & Horton, and Messrs. Blinn & Hoblitt, for the appellant:
    As to what constitutes color of title under the Limitation law, see Hardin v. Gouveneur, 69 Ill. 140; Fagan v. Rosier, 68 id. 84; Morrison v. Norman, 47 id. 447; Huls v. Buntin, id. 596; Dickenson v. Breeden, 30 id. 279; Busch v. Huston, 75 id. 533.
    Good faith of the holder of the color is presumed. Davis v. Hall, 92 Ill. 85; McConnel v. Street, 17 id. 253; Millikin v. Martin, 66 id. 13; Coleman v. Billings, 83 id. 183.

      Seven years’ possession by the railroad under color of title and payment of taxes is a good defence to a suit in equity to divest title. Railroad Co. v. Railroad Co. 71 Ill. 38.
    As to payment of taxes, see Cofield v. Furry, 19 Ill. 183; Hinchman v. Whetstone, 23 id. 185; Beaver v. Taylor, 1 Wall. 367.
    Messrs. Beach & Hodnett, for the appellee:
    Appellant, to avail of the bar of the statute of 1839, must have paid all taxes legally assessed against the land. Irving v. Brownell, 11 Ill. 402; Jayne v. Gregg, 42 id. 413; Cook v. Norton, 43 id. 391; Allen v. Munn, 55 id. 486.
    By failing to pay the tax, appellant assumed the burden of proving the tax was illegally assessed. Wettig v. Bowman, 47 Ill. 17; Elston v. Kennicott, 46 id. 187; Kane v. Treat, 25 id. 557; Mills v. Thornton, 26 id. 300.
    Payment must be made under claim and color of title, to be available. Jayne v. Gregg, 42 Ill. 413; Fell v. Cessford, 26 id. 526; Hurlbut v. Bradford, 109 id. 400.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Bobert N. Forsyth, the appellee, brought an action of ejectment to the January term of the circuit court of Logan county, against the Peoria, Decatur and Evansville Bailway Company, to recover a certain strip of land constituting a part of the company’s line of road. It is conceded the land in controversy originally belonged to appellee. The defence relied on, was, possession under claim and color of title made in good faith, and payment of taxes for seven years. There was a trial before the court and a jury, resulting in a verdict and judgment for the plaintiff, and the defendant appealed.

Accepting appellant’s own statement of the facts, we have no doubt of appellee’s right to recover. The color of title relied on is a conveyance from John T. Martin and others, executed in 1876. The appellant paid all taxes assessed against the property for the years 1876 to 1885 inclusive, “except-(to use counsel’s own language) a small portion of the tax for the year 1879, denominated special town tax of West Lincoln, amounting to $375.15.” This tax, it is conceded, was never-paid, and that it was legally assessed is not questioned. The-language of the statute relied on as a defence is, that “every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to he the legal owner of said lands or tenements to the extent and according to the purport of his or her paper title.” It is clear, from, the express words of the statute, that before one can successfully invoice its provisions against the paramount owner, he-must come prepared to show that he has paid “all taxes legally assessed” on the premises during the seven years. Appellant, has failed to do this, and it is admitted that a part of the-tax has never been paid. It is sought, however, to obviate this defect in the title relied on, by showing that so much of the tax as was not paid was dropped from the tax books and. was never reported as delinquent taxes. It is not pereeived. how the neglect of the officers whose duty it was to collect, this town tax, by reason of which it was finally lost to the-town, can afford the shadow of an excuse for its non-payment by the appellant. That the performance of all the-requirements of the section of the statute above cited, is a-"condition precedent to the obtaining of a good title under it,, is too manifest to admit of serious discussion.

As the defence is clearly insufficient upon the appellant’s, own admission, it is unnecessary to consider the instruction complained of. It may be conceded to be bad, and still, under .the admitted facts, the plaintiff is entitled to recover.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Annie Harris v. Daniel McIntyre et al.

      Filed at Ottawa October 5, 1886.

    1. Notice—by possession of land—as to the character of possession required, in order to operate as notice of occupant’s rights. Circumstances which would put an ordinarily prudent and cautious man upon inquiry as to the claim or title of another to a tract of land, will charge him with notice of such facts as a diligent inquiry would have disclosed.
    2. The open and visible possession of land by the equitable owner at the time of a conveyance by the holder of the legal title, and the giving of a mortgage by the grantee of the latter to secure a loan, will be sufficient to charge such grantee and mortgagee with notice of the rights of the equitable owner.
    3. The possession which will protect the holder of an equitable title must be such as to put purchasers upon inquiry, which, if followed, would lead to notice of such title. -
    4. A widow furnished her bachelor brother with $1600, with, which, together with $500 advanced by him, to buy a farm for their joint use, the title to be taken to each in proportion to the sums advanced by them, respectively. He, however, took a conveyance of the entire estate to himself, and they both moved upon the place in 1869, he managing the land, and she attending to the household duties. The deed was recorded, and he borrowed money and had mortgaged the land to secure the loan, and appeared to the world as the owner for a period of over ten years, during which time the sister took no steps to have her equitable rights enforced or asserted: Held, that her possession under such circumstances was not such a possession as would charge a purchaser or subsequent incumbrancer from her brother with notice of her equitable rights.
    5. Resulting trust—when it arises. A resulting trust arises, by implication of law, where land has been purchased with the money of one person and the deed taken to another, who is a stranger,—that is, one not a wife or child, or standing in that relation.
    6. If a joint purchase is made in the name of one of the purchasers, and the other pays his share of the purchase, money, equity will lay hold of the circumstance of the title being in one, only, and a resulting trust will be declared in favor of the other, for his share.
    7. In this case, a person purchased a farm for $2100, of which he furnished $500, and his sister the balance, under an agreement that they should own the premises in the proportion each paid, and he took the title to himself in fraud of her rights: Held, that he would hold the title in trust for her, in the same proportion the money she paid bore to the whole sum paid. The fact the money was paid in pursuance of a prior express contract, would not change the rule.
    8. Same—Statute of Frauds—of its application in the case of a resulting trust. As a resulting trust arises upon the allegation and proof of the ownership of the funds used in making a purchase, of land, and does not depend upon the contract of the parties made anterior thereto, it will not be affected by the Statute of Frauds.
    ■ 9. Same—laches—delay in asserting a claim to a resulting trust. Courts ■of equity will not enforce resulting trusts after great delay in seeking their ■enforcement, unless there is shown an equitable excuse for the delay. But :mere lapse of time will be no bar, if an excuse is given which takes hold tupon the conscience of the chancellor, and is such as renders it inequitable *hat the bar should be interposed.
    10. Same—effect of an incumbrance created by the holder of the legal title—of partition in such case—apportioning the incumbrance. Where the facts are such that the law raises a resulting trust, the execution of a mortgage on the premises by the holder of the legal title, without the consent of the cestui que trust, will not defeat the right of the latter to enforce the trust as against the former.
    11. So,,where a person holding the legal title to a tract of land, 5-21 parts in his own right, and 16-21 in trust for his sister, fraudulently conveyed the entire property to a brother, who had notice of his sister’s equitable title, and that brother gave a mortgage or deed of trust upon the whole land to one having no notice of the sister’s rights, it was held, on bill to declare and enforce the trust, and for partition, that the court should have found that complainant was the owner of 16-21 parts of the land, and the second brother of the remaining five parts, and made partition accordingly, subject to the lien of the deed of trust, and requiring that the interest of the brother of 5-21 parts be first sold in discharge of such lien, before resorting to the interest of the sister.
    12. Evidence—admissions—of their weight. Evidence of the admissions and statements of a party in loose or casual conversations, occurring several years before the witnesses are examined, relating to a subject or subjects in which they had no personal interest, where they do not pretend to give the precise language or phraseology used, or show the exact connection in which the language was used, should be received with great caution, and unless corroborated will not be sufficient to establish a resulting trust.
    13. Laches—in equity—following the law. Where the statute fixes the time within which to bar a claim when asserted at law, courts of equity will refer to the statute to ascertain the reasonable time in which the bar will be complete in equity, thereby following the law. Where there is no statute applicable, the time in which a party will be barred in equity, necessarily depends upon the particular circumstances of each case.

      14. In this case, a person, under a verbal agreement with his sister, bought a farm for $2100, of which he furnished only $500 and his sister the balance, for their joint benefit, but' he fraudulently took the conveyance to himself, and they both, shortly after their purchase, in 1869, went upon the land, making it their home. The brother gave incumbrances on the premises without the knowledge or consent óf the sister. It appeared that she reposed great confidence in him, which he shamefully abused, and it appeared that she remained upon the place all the time, in the belief that she owned the greater interest in the same, until in 1881, when she filed her bill to have a resulting trust declared, and to set aside a conveyance made by her brother to one having notice of her equities, and for partition. It was held, that she was not barred of relief by her delay in filing the bill, it clearly appearing that she was kept in ignorance of the fraud practiced upon her until shortly before filing her bill, and that there was no possession hostile to her rights.
    Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    This was a bill in chancery, filed in the Carroll circuit court, by appellant, for partition of certain lands lying in that county. The.bill alleges that appellant and her brother, Neil McIntyre, purchased certain described 152T8gí acres of .land, for the sum of $2100, on or about the 6th of February, 1869, and that she paid $1600, and said Neil McIntyre $500, of the purchase money; that she relied upon said Neil to take the title to said land to them jointly, but he took the title wholly to himself; that although the deed was a conveyance of said lands absolutely to said Neil, on its face, it was not intended to be so, but on the contrary, it was expressly agreed and understood that she and said Neil should hold the land as tenants in common, she parts, and he -2^ parts; that complainant was a widow, with two children, and said Neil a bachelor, and it was agreed that they would move upon said lands and occupy the same as one family, and they accordingly did so; that said Neil held the -|-®- parts of said land in trust for her; that said Neil, when she discovered that he had taken the deed to himself, gave her as his reason for so-doing, that she had two minor children to whom the land would descend in case of her death, and that it would be impossible for him to get his interest out or sell the land without litigation and great expense; that she had implicit faith in said Neil, believing he would act in the utmost good faith toward herself and children; that they (appellant and said Neil) afterwards purchased of Daniel McIntyre, for the sum of $300, the other forty-acre tract described in the bill, and paid for the same with timber cut off the land first purchased by them, and while the deed was by said Neil taken to himself, it was expressly agreed and understood it should be held by them as tenants in common, with the same interests as they held in the original purchase; that all of said lands since then purchased, were occupied, possessed and controlled by them jointly, until abandoned by Neil, and that she continues to occupy the same; that on the 25th of March, 1879, Neil McIntyre, by warranty deed, conveyed all of said lands to Daniel McIntyre, to secure certain moneys Neil owed him; that on the next day, Daniel McIntyre made and delivered a trust-deed of said lands to Henry Ashway, to secure the sum of $1700, payable in three years, to Caroline Marks; charges that Daniel McIntyre had actual notice of the interest of appellant in said lands at the time of the several conveyances to said Neil, and by said Neil to himself; charges that she received no benefit from the conveyance to Daniel McIntyre or Ashway, and never consented thereto, and also, that she being in actual occupancy of the premises, said Ashway and Marks are chargeable with notice. Neil McIntyre, Daniel McIntyre, Henry Ashway and Caroline Marks are made defendants. It is prayed that the interest of appellant be found, and partition be made; that the trust deed to Ashway be removed as a cloud, but, if the said deed is found to be a valid claim against the whole land, that the interest formerly owned by Neil McIntyre be first subjected in payment thereof.Daniel McIntyre answered, denying the bill. Appellees Ash. way and Marks denied all knowledge of the equitable rights claimed by appellant, and that they relied on the record and ■statements of Daniel and Neil McIntyre, that said Daniel was the owner, etc. On the hearing, the circuit court dis- • missed the bill, and the complainant brings the ease to this--court by appeal.
    Mr. M. Y. Johnson, and Mr. George L. Hoffman, for the • appellant:
    Where land is purchased with the money of one, and the title taken to another, the latter will hold the title in trust for the party furnishing the money. Smith v. Smith, 85 Ill. 189.
    A resulting trust is a presumption of law, not depending "upon any agreement, and hence is not affected by the Statute •of Frauds. Ward v. Armstrong, 84 Ill. 151; Mahoney v. Mahoney, 65 id. 406; Wilson v. Byers, 77 id. 76; Mason v. Showalter, 85 id. 133; Loften v. Witboard, 92 id. 461; Chamer v. Hoose, 91 id. 503.
    A purchaser from Neil McIntyre with notice of appellant’s nights, takes no better title than his vendor, and holds in "trust, the same as his vendor. West v. Fitz, 109 Ill. 425 ; McDonald v. Snow, id. 40.

      Laches is that slothful, negligent conduct that misleads others to their prejudice. There is nothing in this case that has misled anybody.
    Appellant’s possession, or being upon the place, was sufficient to put a jirudent person on inquiry. The law presumes that a prudent man, before purchasing, will take ordinary precaution, and if the land is found occupied, will institute the necessary inquiry to ascertain by whom and by what right he is there. Trusdale v. Ford, 37 Ill. 214; Clevinger v. Ross, 109 id. 349; Rupert v. Mark, 15 id. 540; Brooks v. Bruyn, 18 id. 542; Lyman v. Russell, 55 id. 281 ; Hubbard v. Kids, 87 id. 578; Small v. Stagg, 95 id. 39; Story’s Eq. Jur. sec. 400.
    A purchaser or incumbrancer from a trustee is, in equity, bound by the trust, to the same extent and in the same manner as the person from whom he purchased; and to support •the plea of bona fide purchaser without notice, the defendant must aver and prove, not only that he had no notice of complainant’s rights, but that he paid the money, and took ordinary precaution, such as a prudent man would take, before he is held as an innocent purchaser without notice. Willard’s Eq. Jur. 608; Murry v. Ballow, 1 Johns. Ch. 566; Wormly v. Wormly, 8 Wheat. 421; Oliver v. Platt, 3 How. 333; Bank v. Seaton, 1 Pet. 309; Story’s Eq. Jur. secs. 395, 397, 400, 409; 4 Kent’s Com. 308; Mason v. Wilson, 1 Cranch, 100; Shepherd v. McEvers, 4 Johns. Ch. 136; White v. Carpenter, 2 Paige’s Ch. 222.
    Mr. James Shaw, for the appellees:
    Eesulting trusts, and all trusts which seek to overcome deeds and conveyances, must be proved with great clearness- and certainty. Parol evidence to establish them is received with great caution. Such evidence is not regarded with favor, and if denied or contradicted, such evidence is insufficient to-establish these old sleeping trusts claimed to exist. Perry on Trusts, 110, and note; Lantry v. Lantry, 51 Ill. 458; Mahoney v. Mahoney, 65 id. 406; Enos v. Hunter, 4 Gilm. 218 Maple v. Nelson, 31 Iowa, 322; Perry on Trusts, secs. 137-139.
    Eesulting trusts can not be created by agreements. They are implied equities, only. Trusts created by agreement become express trusts, and must be evidenced by a memorandum, in writing. If the Statute of Frauds is set up as against a resulting trust resting in parol, its effect is inexorable on express trusts not in writing. McDonald v. Stow, 109 Ill. 44; Perry on Trusts, secs. 126-135; Hovey v. Holcomb, 11 Ill. 660; Greene v. Cook, 29 id. 193; Kane County v. Herrington, 50 id. 237; Carpenter v. Davis, 72 id. 17; Holmes v. Holmes, 44 id. 169; Sheldon v. Harding, id. 69.
    Appellant’s laches is a bar to this suit. Perry on Trusts, secs. 870-141; Hall v. Fullerton, 69 Ill. 448; Carpenter v.
      Carpenter, 70 id. 457; Williams v. Rhodes, 81 id. 571; Castner v. Walrod, 83 id. 171; McDonald v. Stow, 109 id. 44; Breit v. Yeaton, 101 id. 244.
    Knowingly permitting others to control, manage, buy and sell land, and remaining silent, will 'bar and estop one from afterward setting up equitable claims which should have been announced at the time. Cochran v. Harrow, 22 Ill. 345; Lloyd v. Lee, 45 id. 277; Bigelow on Estoppel, 500, 501.
    Where possession is relied on as notice to purchasers and others dealing in land, equitable claims not of record, it must be such open and notorious possession as will indicate to neighbors who has the control and management. Hubbard v. Kiddo, 87 Ill. 580; Truesdale v. Ford, 37 id. 214; Strong v. Shea, 83 id. 578; Smith v. Heirs of Jackson, 76 id. 254.
   Mr. Justice Shope

delivered the opinion of the Court:

It is not alleged in the bill that appellees Ashway and Marks, or either of them, had actual notice of the equitable rights of appellant set up in her bill, and unless she had such possession of the land in question as would put them upon inquiry as to her rights therein, it is not contended that they had any notice whatever.

We have carefully considered the evidence preserved in the record, and find the facts proved to be these: In February, A. D. 1869, appellant, being a widow, with two children, and having $1600, joined with her brother, Neil McIntyre, in the purchase of 152T8^- acres of land, known as the Bellows farm, for the purpose, as she claimed, of making it a home for herself aW children, and the said Neil, who was a bachelor; that the land cost $2100, she contributing $1600 and said Neil $500 of the purchase money; that it was understood they should own said land as tenants in common, but said Neil, without the knowledge or consent of appellant, took the title to himself, individually; that the deed was so taken February 6, 1869, and soon after recorded on the land records of Carroll county; that immediately after the acquisition of said land, appellant and her family, and said Neil, moved into the house on the premises, and from that time until the summer of 1881 continued to occupy it all together, as one family, appellant being the housekeeper, and said Neil having control and management of the farm. It does not appear that she assumed or exercised any control or management of the premises or crops grown, or was in any way known except as housekeeper for her brother. Neil was the owner of record, in possession, and in the actual control and management of the premises, disposed of the crops, and assumed to be the exclusive owner at the time of the loan by Marks of the money secured by the trust deed to Ashway. The premises were about to be sold upon a trust deed upon the whole land, executed by said Neil to one Becker, to secure a loan from Gillespie, and said Neil applied to Ashway for a loan upon the land, to pay off such prior incumbrance. This being refused, an arrangement was subsequently made, by which the said Neil agreed to and did convey the land to his brother, Daniel McIntyre, and the loan was made by Ashway to him, of the money of Mrs. Marks, and the trust deed to Ashway, as trustee, taken to secure the same. This was on the 26th day of March, 1879. It appears, therefore, that there was nothing but the bare fact that appellant resided with her children upon the premises, ostensibly as the housekeeper of her brother Neil, to put them or any one upon inquiry. This condition had continued from the spring of A. D. 1869, when they went into possession. That the loan by appellee.Ashway, for Mrs. Marks, was made in perfect good faith, and without any actual notice of any claim of appellant to the land in controversy, is abundantly shown by the evidence.

If appellant was, at the time of taking the trust deed by Ashway, in open and visible possession of the land, the law would charge appellees Ashway and Marks with notice of her •equitable interest, or if the circumstances were such that an •ordinarily prudent and cautious man would have inquired as to her claim upon the land, they will be held to have been bound to make inquiry, and be chargeable with such notice :as diligent inquiry would disclose. Persons acquiring title to or liens upon land can not shut their eyes willfully or negligently, when proper observation would lead to knowledge •of the rights of others, and then be heard to insist they had no notice of that which, by the exercise of ordinary care and prudence, would have been apparent to them. The possession, however, which will protect the holder of an equitable title, must be such as to put purchasers upon inquiry, which, if followed, would lead to notice of such equity.

It will be unnecessary to review, here, the numerous adjudications upon this subject. It will be found that' at last each case must be determined by the circumstances of that particular case. The chancellor was called upon to say whether the possession of appellant was such as should, under the rule, have put the appellees upon inquiry, and he determined it in the negative, and with that finding we are not •dissatisfied. Appellant had permitted, for over ten years, the title to remain of record in her brother. Other mortgages or trust deeds, securing substantially an amount equal to onebalf the value of the land, had been executed by the apparent ■owner, and for some years remained of record unchallenged by her. She had permitted Neil McIntyre, who was invested with the legal title, to exercise, so far as the public could see, exclusive control and management of the farm and its products, without objection by her, or the assertion of any right on her own behalf, while she, to all appearances, was simply the housekeeper for her brother, and so far as shown by the proof, apparently, to the world, occupied the premises in no other ■capacity. We are of opinion that under these circumstances appellee Ashway was warranted in relying upon the record, and the combined declaration of Neil and Daniel McIntyre, as to the state of the title, and that there was no such condition of affairs apparent, as, in the exercise of common prudence, would suggest that inquiry would disclose any equitable title in appellant to this land.

As to the appellee Daniel McIntyre, we are of opinion that the decree should be reversed in part. It is true that the evidence is conflicting; but after careful consideration of it, we are satisfied that the decided weight of the evidence sustains the allegations of appellant’s bill of complaint. It will serve no good end to go into an extended discussion of the evidence, but it will be sufficient to say that appellant and Neil McIntyre both testify to the principal fact that $1600 of appellant’s money went into the purchase, and that the premises first bought were intended for a home for her and her family, and they are corroborated by Barker, whose advice appellant sought in reference to the investment, and by others, while the evidence in contradiction consists, in the main, of declarations of appellant testified to after a considerable lapse of time, and many of them, when considered in the light of the surrounding circumstances, really not necessarily inconsistent with the theory of appellant’s case. She is represented as at various times calling the farm Neil’s farm, on several occasions saying that she had loaned her brother Neil her money; that she had trusted her brother and had nothing to show for it, and like expressions. Five witnesses thus testify to conversations of appellant at various times, from about the time of the purchase up to within a few years of the litigation. Some of them say she “claimed” to have loaned her money to said Neil, without giving her language, and all are testifying to loose conversations occurring several years before giving their testimony, relating to subjects in which they had no personal interest, and very few of them pretend to give the particular phraseology or to reproduce the exact connection in which the language was employed. In many of the declarations testified to, the change of a word or the form of expression would render it consistent with the theory of appellant’s claim to the land. Of the same character is the evidence introduced by appellant, of declarations of appellee Daniel McIntyre, alleged to have been made at various times prior to this litigation, some of which will be further considered hereafter. This testimony must be received with great caution, and of itself would not be sufficient to entitle appellant to recover, but much of it is strongly corroborative of the testimony of appellant and Neil McIntyre, both as to the main fact, and as to Daniel’s knowledge of the.equitable interest of appellant in the land.

We are satisfied, from the evidence, that Daniel McIntyre must have known of the equitable rights of appellant, and of the purpose and object of the purchase and the character of her occupancy. Appellant testifies, that before the purchase, Daniel McIntyre, who was also her brother, wanted to know what she was going to do with her money, and that she then told him she and her brother Neil contemplated purchasing the Bellows farm for a home, and he approved of it. After-wards, when ill, she was worrying about her children, and again her interest in the land was the subject of conversation between them. Neil McIntyre testifies to a full understanding, on the part of Daniel, of Mrs. Harris’ relations to this farm, both before and after the purchase. Shortly after the purchase, in the summer of 1869, Robinson, assessor of taxes, finding the title in Neil’s name, told Daniel about it, and told him that as he was appellant’s elder brother, he ought to advise her what to do, as her money might be lost if Neil should die, to which Daniel replied, in substance, “he guessed they could attend to their own business if other people would let them alone. ” Another witness testified, that Daniel said he knew Mrs. Harris (appellant) had money invested in the place. Another, that he said, in speaking of the farm: “It is a place Neil and my sister bought; she put in some $1500 or $1600. ” Another, that he said, in speaking of a controversy over a log chain: “If Neil had his debts paid, and Annie (appellant) had her money out of the farm, Neil wouldn’t have money enough left to buy a log chain.” Another, that Daniel said to him that the Bellows farm belonged to his sister, Annie, and another, that he asked Daniel how he was going to get. possession of the farm, and said to him, “you know Mrs. Harris’ money is in there, ” to which Daniel replied he knew her money was in the land, but she had nothing to show for it; and other witnesses testify to similar statements and declarations, made at various times, between the purchase, in 1869, and the filing of appellant’s bill. It is just to say, that Daniel McIntyre denies having made these statements, and all knowledge of appellant having any interest, legal or equitable, in the land, but insists that whatever money Neil received of appellant was as a loan. We think, however, that the testimony, when all considered, clearly preponderates in appellant’s favor.

Nor can the fact that said Neil McIntyre mortgaged the-premises to Bemis and Gillespie, militate against this view. It is doubtful if appellant knew of them prior to the conveyance of the land to her brother Daniel. There is abundant evidence to establish that she knew nothing of any advances-by Daniel to Neil on account of this land. Both of the-brothers seem to have sedulously kept that knowledge from her. Neil -swears positively that he purposely kept her in. ignorance of his acts, and Daniel nowhere testifies.to having told her of his advances, or of any interest he claimed in the land. The witness Kelly swears that three years before giving his testimony, Daniel told him that appellant did not know Neil borrowed money on the land, and he (Daniel) did not. believe she knew it then. After Neil had deeded the land to Daniel, and at a time when Daniel received $500 as damages-for a right of way through the land, he said to the witness-William Fulton: “Suppose I should- meet Annie, what would. I say to her?” Witness replied, “Tell her the truth,” and Daniel replied, “I can’t meet her.” She testifies that she had no knowledge whatever of any advances by Daniel, or of any mortgages on the land, or of the conveyance to Daniel, until 1881. As between appellant and said Neil, the execution of these mortgages, to which she in no way consented, could not defeat her equitable title, and Daniel having, as we have-found, notice of her rights at the time he took his deed, stands in no better position.

It is, however, insisted, that the bill proceeds upon an express trust created by agreement,—that as it is alleged in the bill of complaint that it was expressly agreed and understood that appellant and said Neil should purchase the land and hold it as tenants in common, in proportion of sixteen to five parts, etc., the proof does not sustain the bill, and also that the case falls within the Statute of Frauds. This, we think, is a misapprehension. It is true, the bill alleges the fact stated, and that appellant and Neil McIntyre were to own the land in the proportion that each advanced of the purchase money,—that this was not done, said Neil taking the title in his own name. The facts proved, show a resulting trust. As said by this court in Smith v. Smith et al. 85 Ill. 189, “it was none the less such a trust because the-money was paid in pursuance of a prior express contract between the parties.” The agreement was not that said Neil should convey to her, but that they should purchase and own the land in the proportion that each contributed to the purchase money; and when Neil, acting for both, took the title to' himself in fraud of her rights, he held the title so acquired in trust for her, in the same proportion the money she paid bore to the whole consideration paid. Smith v. Smith et al. supra; Springer v. Springer, 114 Ill. 550.

A resulting trust arises, by implication of law, when land has been purchased with the money of one person and the deed taken to another, who is a stranger,—that is, not a wife or child, or standing in that relation. Appellant was a stranger, within this rule. (Perry on Trusts, 143; 2 Washburn on Beal Prop. 441; 4 Kent’s Com. 306.) It can not be material whether the complainant is entitled, in equity, to the whole land, or only a moiety. If a joint purchase is made in the name of one of the purchasers, and the other pays his share of the purchase money, equity will lay hold of the circumstance of the title being in one only, and a resulting trust will be declared in favor of the other for his share. (2 Story’s Eq. Jur. 1206.) The trust here arises upon the allegation and proofs of the ownership of the funds used in making the purchase, and does not depend upon the contract of the parties made anterior thereto, and hence is not affected by the Statute of Frauds. Wallace v. Carpenter, 85 Ill. 590; Ward v. Armstrong, 84 id. 151; McDonald v. Stow, 109 id. 44.

It is next urged, that a court of equity will not enforce this trust because of its staleness, and the laches of appellant in asserting her rights. We have already adverted to some features of the case bearing upon this question, and it will be unnecessary to go over them again. However, it appears that the deed to the Bellows farm was made in February, 1869, and possession taken, as already described, in the spring of that year, and that appellant, with her children, resided upon the land, with her brother Neil, until 1881, and upon his abandoning the farm in the summer of that year, she continued in possession, and still resides thereon. The deed from Neil McIntyre to Daniel McIntyre was made March 28, 1879. The bill in this case was filed December 16, 1881. It is the settled doctrine, that courts of equity will not enforce resulting trusts after an unreasonable delay in seeking their enforcement, unless there is shown an equitable excuse for the delay. (Perry on Trusts, 141; 2 Story’s Eq. Jur. 1520.) Where the statute fixes the time within which the claim would be barred if asserted at law, courts of equity will refer to the statute as the means of ascertaining the reasonable period in which the bar will be complete in equity, thus, by analogy, following the law. In cases, however, where there is no statute applicable, the time in which a party will be barred from relief in a court of equity, must necessarily depend upon the peculiar circumstances of each case. (Castner et al. v. Walrod, 83 Ill. 171; Kane County v. Herrington, 50 id. 239, and authorities cited.) These principles are sanctioned by an unbroken line of decisions, and it will need the citation of no further authority to sustain them.

It is, however, to be observed, that mere lapse of time, however great, will not bar a recovery, if an excuse therefor be given which takes hold upon the conscience of the chancellor, and is such as renders it inequitable that the bar should be interposed. As we have seen, when Neil McIntyre and appellant moved upon this land, known as the Bellows farm, it was understood between them that it had been purchased for a home for herself and children, and her brother Neil. They were to occupy as one family, -while owning the land as tenants in common. The occupancy was, in fact, under that agreement, until in the summer of 1881, when said Neil abandoned the premises. And -while appellant may have so permitted said Neil to control and manage the farm, that, with the title in his name, she would be precluded from asserting her title as against strangers who might become purchasers from or acquire liens thereon through said Neil, without notice, yet as between themselves, the holding of Neil was in no sense hostile or adverse to her. She was in the actual occupancy, under an express stipulation and agreement as to the holding. Daniel McIntyre, as we have seen, had actual notice, not only of her equitable title, but the character of her possession, the purpose and object of the purchase, and occupancy of the land, and he took whatever title he acquired by his deed with all the infirmities of the title of his grantor, Neil McIntyre. Again, it is apparent, from the record, that appellant relied implicitly upon her brother Neil, from the inception of the transactions between them. He, as shown by his own testimony, and that of appellant as well, persistently deceived her as to his dealings in respect to this land. We think it is shown that the fact of his taking the deed to. himself, the execution of the trust deed to Becker, the mortgaging to Daniel in 1878, and the sale and conveyance to. Daniel in 1879, was by artifice and the most shameless duplicity kept- from her knowledge. Nor does it seem quite clear that Daniel McIntyre was wholly guiltless of the deception practiced upon appellant. Be that, however, as it may, as late as the fall of 1879 or 1880, (it does not clearly appear which,) when the rent corn was being hauled to Daniel from, this place, she inquired why Daniel was getting the corn, and Neil explained to her that he owed Daniel, and might as-well pay him off that way as to haul it to market and bring, him the money.

We can not go farther into the testimony, but the whole' record shows that appellant had great confidence in her brother, and trusted implicitly to his management for her in respect to this property, and that the trust thus reposed was shamefully betrayed. Daniel had been told by Bobinson of his duty, as elder brother, to advise appellant so she might, not lose her money. He had replied, in substance, that they could manage their own business if other people would let them alone; and with full knowledge, as we find from the-weight of testimony, that the money his sister had received as the proceeds of a policy on the life of her deceased husband, had been used in the purchase of a farm as a home for herself and children, he, in 1875, to secure a debt from Neil-to himself, took a mortgage on this land, and afterwards, in March, 1879, assumed the trust deed given to Becker to secure the Gillespie debt, and took an absolute conveyance from Neil to himself, of all this land, including the forty-acre tract mentioned in the bill, without, according to his own showing, giving appellant any notice or saying a word to his sister upon the subject. It appeared, it is true, that appellant was told, shortly before the making of the deed from Neil to Daniel, that the land was advertised for sale under the Becker trust deed, but it is not shown that she was then told the state of the title, or how, if at all, such sale, if made, would affect her interest in the land. In no view of the case, accepting, as we do, what we regard as the preponderance of the evidence, was there such laches, even if Daniel is in position to set it up, as would preclude appellant from enforcing this trust in a court-of equity as to the 152T80^ acres, known as the Bellows farm, as against the said Neil and Daniel McIntyre. As to the forty-acre tract afterwards purchased, as it is alleged, by appellant and said Neil, and paid for out of the proceeds of the timber cut from the Bellows farm, no such equities arise. It does not satisfactorilyt appear that Daniel had any notice of any equitable title of appellant thereto, or that she furnished any portion of the purchase money. This tract was disconnected from the other lands. Appellant never was, so far as shown by the evidence, in the actual possession of it. It was included in the deed of March 26, 1879, from Neil to Daniel, and we think under that deed he took the title disencumbered by any equities appellant might have had therein.

We are of opinion that the decree of the circuit court should have found appellant equitably entitled to ^ parts of said tract of land known as the Bellows farm, and conveyed by Sarah Bellows to Neil McIntyre by deed dated February 6, 1869, as set forth in the bill and exhibits thereto, and should have declared the trust in her favor therefor, as prayed in her bill, and found the said Daniel McIntyre the owner of ^5T -parts of said lands, and made partition thereof accordingly, subject, however, to the lien of the deed of trust to appellee Ashway thereon, for the amount of money remaining due thereunder, and requiring that the interest of the said Neil in said 152I8/g- acres of land now owned by said appellee Daniel McIntyre be first exhausted in satisfaction of the sum secured by said trust deed, before resorting to the interest of appellant in said lands to satisfy the same, and finding that as to the said forty-acre tract, to-wit, the north-west quarter of the north-west quarter of section 18, township 25, range 3 east, fourth principal meridian, the complainant was not entitled to relief. -

The decree of the circuit court, dismissing the bill, will be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

Decree reversed.


author: Mr. Justice Magruder

text:
    Matthew Faloon v. R. S. McIntyre et al.

      Filed at Springfield October 6, 1886.

    1. Parent and child—as to their mutual support—presumption, as to the existence of any contract for compensation—evidence in respect thereto. Where a child lives with a parent, or a parent with the child, the relationship between them is so intimate that the law does not imply a contract to pay money for support or services, and unless there is an express contract to pay for the same, a recovery therefor can not be had by one against the other.
    2. In the absence of an express agreement to pay for support or services, as between parent and child, the law will presume that what the one may do for the other is done gratuitously, and as the prompting of natural affection.
    3. So where a father and mother reside in the family of their son-in-law for several years, without any express contract to pay for their support, and the facts and circumstances fail to show that any compensation was intended or expected to be given or received, but rather indicate that no charges were to be made on either side, the son-in-law will have no right to recover any sum for the support of his wife’s parents.
    4. In this case, an aged father made his home with his married daughter for about sixteen years, during which time there was no accounting or reckoning between him and his son-in-law, a physician, and the latter made no charge for medical services, nor any claim for board, or necessaries or supplies furnished, but, on the contrary, gave his notes to the father-in-law, at different times, for considerable sums, and continued to make payments thereon, and the father-in-law conveyed to him property worth $6000 for $2500: Held, that these facts negatived the idea of any contract of the father to pay for his support.
    5. Fraudulent conveyance—voluntary provision for wife or children. A man has a right to make a voluntary conveyance of land to a trustee, for the benefit of his wife and children, provided he does not do so in fraud of the rights of existing creditors. The mere fact of indebtedness, alone, will not invalidate such conveyance. It must further appear that the grantor was insolvent at the time of making such provision.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Mr. Thomas F. Tipton, for the plaintiff in error:
    The conveyance. to McIntyre had a direct tendency to impair the rights of plaintiff in error in regard to his claim. It conveyed all the property Mr. Fell owned, and when this conveyance was made, he was, in fact, insolvent. That it was void, see Patrick v. Patrick, 77 Ill. 561; Moritz v. Hoffman, 35 id. 554; Sweeney v. Damron, 47 id. 450; Gridley v. Watson, 53 id. 186; McLaurie v. Partlow, id. 340.
    I concede the general doctrine that a voluntary conveyance is void only as to prior creditors, and not as to subsequent creditors, as held in Palmer v. Yeazle, 88 Ill. 597, Moritz v. Hoffman, 35 id. 553, Bridgeford v. Riddel, 55 id. 261, Mixell v. Lutz, 34 id. 382, Ward v. Enders, 29 id. 519, and Woolbridge v. Gage, 68 id. 159.
    But even this rule must be considered subject to exceptions and limitations,—that while this doctrine, that only creditors having claims when the fraud is committed can avoid such conveyance, yet if it be shown that the deed was made in anticipation of incurring debts, to avoid the payment of which the conveyance was made, the rule is otherwise,—and this principle runs through all the cases. Mixell v. Lutz, 34 Ill. 382; Moritz v. Hoffman, 35 id. 553; Gridley v. Watson, 53 id. 186; Woolbridge v. Gage, 68 id. 157; Griffin v. National Bank, 74 id. 259; Tunison v. Chamblin, 88 id. 285; Pratt v. Myers, 56 id. 24.
    McIntyre is a mere trustee, and holds the property under the deed. Having no interest, in fact, in the matter, he can not, in any sense, claim to be a bona fide holder, and the conveyance should be set aside. Jones v. Ewing, 86 Ill. 229; Hoole v. Moore, 17 Iowa, 197; Bump on Fraudulent Conveyances, 319.
    Messrs. Fifeb & Phillips, for the defendants in error:
    Where services are voluntarily rendered, or support furnished, by those near of kin, or by those sustaining" near family relations, whether of blood kin or not, the law will imply no contract for compensation, and unless an express contract to pay is shown in such a case, no recovery can be had. Hall v. Finch, 29 Wis. 278; Swires v. Parsons, 5 W. & S. 357; Duffy v. Duffy, 44 Pa. St. 399; Lantz v. Frey, 2 Harr. 201; Scully v. Scully’s Exrs. 28 Iowa, 548 ; Coe v. Wager, 42 Mich. 49; St. Jude’s Church v. Denberg, 31 id. 287; Fitch v. Peckham’s Exrs. 16 Vt. 150; Insurance Co. v. Bloodgood, 4 Wend. 652; Defrance v. Austin, 9 Barr, 309; Meyer v. Malcom, 20 Ill. 621; Schwartz v. Schwartz, 26 id. 81; Mowbry v. Mowbry, 64 id. 382; Bond v. Lockwood, 33 id. 212; Meyers v. Temme, 72 id. 574; Brush v. Blanchard, 18 id. 46; Griffin v. National Bank, 74 id. 259.
    The fact that no charge was made or bill presented for the board of Fell and wife for twenty years, would rebut any legal presumption that might otherwise arise, of an agreement to pay. Hall v. Finch, 29 Wis. 278; Eitel v. Walter, 2 Bradf. 287; Insurance Co. v. Bloodgood, 4 Wend. 652.
    A voluntary conveyance of real estate is not void as to subsequent creditors. Durand v. Weightman, 108 Ill. 489; Woolbridge v. Gage, 68 id. 157; Bridgeford v. Riddel, 55 id. 261; Moritz v. Hoffman, 35 id. 553; Mixell v. Lutz, 34 id. 382; Ward v. Enders, 29 id. 519; Tunison v. Chamblin, 88 id. 378; Pratt v. Meyers, 56 id. 23; Jackson v. Miner, 101 id. 550.
    To render a voluntary conveyance void, even as to prior ■creditors, it must be affirmatively shown that the grantor was insolvent, or at least deeply indebted, at the time of making such conveyance. The rights of creditors must be shown to he impaired. Gudgel v. Kitterman, 108 Ill. 50; Moritz v. Hoffman, 35 id. 553; Patrick v. Patrick, 77 id. 555; Bridgeford v. Riddel, 55 id. 261; Gridley v. Watson, 53 id. 186; Tunison v. Chamblin, 88 id. 378; Pratt v. Meyers, 56 id. 23.
   Mr. Justice Magruder

delivered the opinion of the Court:

On May 5, 1882, Joshua R. Fell and Sarah Fell his wife, as party of the first part, executed and delivered a deed of trust, ■conveying a certain lot in Bloomington, McLean county, Illinois, to Robert S. McIntyre, one of the defendants in error, as party of the second part, wherein it is recited, that the party of “the first part thereto, “doth grant, bargain and sell to the party ■of the second part, his heirs and assigns forever, for the trusts and the uses intended, and purposes hereinafter limited and •declared, all of that certain piece or parcel of land, with the appurtenances, situate in the county of McLean, and State ■of Illinois, described as follows, to-wit, (then describes the premises by metes and bounds,) in trust, to take possession ■of the same, and to have the complete control thereof, to rent the same for the best prices, to collect the rents, and out of the same, first to- pay taxes and repairs, and the expenses of this trust, together with insurance, and to pay the balance •of said rent to said Joshua R. Fell during his natural life, and then to the said Sarah Fell during her life, and after the -death of said parties of the first part, and the survivor of them, sell and convey said real estate under the direction of the court having cognizance of such matters, and invest the-money realized from the sale, and under the same direction,, and pay the interest of such income or investment, as follows : One-half of said interest or income, to Mrs. Ellen Faloon during her natural life, and the other half of said income-in like manner to be paid to Mrs. Mary Conner during her natural life, with this reservation: that out of the one-half' of said money, the life interest of which is to go to Mary Conner, Charles E. Fell is to be paid any sum that he has advanced, or may hereafter advance, out of the interest. After the death of Mrs. Ellen Faloon, one-half of the property purchased therewith shall be given to the children of Mrs.. Faloon, if then living, and if not, then to her legal heirs in like manner, and the other half, at the death of Mrs. Mary Conner, shall be given to her children living, and if none are living, then to her legal heirs, subject, however, to the deductions above named; and the said second party covenants to fairly perform the duties above described.” This conveyance-was acknowledged and recorded on the day of its date. Ellen. Faloon and Mary Conner were the daughters, and Charles E. Fell was the son, of Joshua E. Féll and wife, the grantors-in the deed. Ellen Faloon was the wife of Matthew Faloon,. plaintiff in error.

Afterwards, on May 26, 1883, Joshua E. Fell executed a-judgment note for $2500, dated May 26, 1883, and payable,, one day after- date, to the order of Matthew Faloon, with interest, after due, at eight per cent per annum. On May 28, 1883, judgment was entered up, upon this note, in favor of' plaintiff in error, and against Joshua E. Fell, in the circuit-court of McLean county, for $2500 and costs, upon which execution was issued, and still remained in the hands of the sheriff, when the bill, hereinafter mentioned, was filed.

On July 10, 1883, plaintiff in error filed his bill in said circuit court, setting up the judgment and execution, and praying that the property,"described in the deed of trust, be subjected to the payment of such judgment. The bill charges, that the deed was without consideration, and that the indebtedness, upon which the judgment was rendered, accrued before May 5,1882. Fell, McIntyre, the beneficiaries in the trust, and the tenants in possession, were made defendants. Upon answers filed and proofs taken, the cause went to hearing before the circuit judge, who dismissed the bill for want of equity. This decree, dismissing the bill, was brought before the Appellate Court of the Third District, by writ of error, issued therefrom, and was affirmed by that court. For the purpose of reviewing such judgment of affirmance, the cause is brought before us by writ of error to the Appellate Court.

Joshua E. Fell had a right to make the voluntary conveyance, herein set forth, for the benefit of his wife and children, provided he did not do so, in fraud of the rights of existing creditors. (Moritz v. Hoffman et al. 35 Ill. 553; Sweeney et ux. v. Damron et al. 47 id. 450; Gridley v. Watson, 53 id. 186; Patrick v. Patrick, 77 id. 555.) Unless he can be said to have been in debt to plaintiff in error, he owed, no debts whatever. Hence, the main question to be considered is, whether, on May 5,1882, when the voluntary conveyance was made, there was an existing indebtedness from Fell to plaintiff in error, for which the judgment note was afterwards given in May 1883.

Joshua E. Fell is more than eighty years old, and is very feeble, and almost blind. His wife is over seventy-five years of age. Plaintiff in error married their youngest daughter, about the year 1862. Shortly thereafter, they went to live with plaintiff in error and his wife, and continued to live with them, with the exception of a few brief periods of absence, for nearly twenty years. April 14, 1881, they moved into their own house, to live there "with another daughter, Mrs. Conner. On that day, plaintiff in error, who is a physician by profession, made the following entry in one of his books of account:

“J. B. Fell.—To self and tuife:
To boarding 16g- years (858 weeks) at $8 per week,
for both ------- $6864
To medicine and treatment during last 18 years, etc.,
at $50 per year ------- 900
$7764
By amount at sundry times - 300
$7464

It is, thus, claimed by plaintiff in error, that, on May 5, 1882, he was a creditor of Joshua R. Fell, to the amount of $7464, for board and medical attendance, furnished to Fell and his wife, during a period of sixteen and a half years, and that the indebtedness was compromised, between them, at $2500, on May 26, 1883, when the judgment note was given.

Where a child lives with the parent, or a parent with the child, the relationship between the parties is so intimate, that the law does not imply a contract to pay money for support or services. Unless it be shown, that there is an express contract to pay for such support and services, a recovery therefor can not be had by one of the parties against the other. In the absence of an express agreement, the law indulges the generous presumption, that what is done for each other by parties, thus nearly related, is done gratuitously, and as the prompting of natural affection. Miller v. Miller, 16 Ill. 296; Brush v. Blanchard, 18 id. 46.

In the case at bar, the proof does not show, that Mr. and Mrs. Fell made any contract to pay their daughter and her husband for giving them a home in their old age. On the contrary, the testimony, considered as a whole, conveys an entirely different impression. Dr. Faloon was much older than his wife, and she was but a mere girl, when she married him. She appears at that time to have been living with her parents, and to have been very reluctant to leave them alone. She says, in her evidence in this ease, that an arrangement was made, before she was married, that her father and mother were to come and live with her; that such was her own request; that the only objection her mother had to her marriage was her leaving home; that she was conscientious about leaving her parents alone in the country, and would not leave them for three weeks at a time; that nothing was said about the cost of keeping them, and that she and her husband ■offered them a home.

During the many years, prior to April 1881, while these parties were living together, there was never anything like an account or reckoning between them. Before the date of the book entry, above mentioned, plaintiff in error made no ■charge for medical services, nor any claim or demand for board, or necessaries, or supplies, furnished by him. This negatives the idea, that there was any contract, on the part of Fell, to pay Dr. Faloon for his support. (Hall v. Finch, Admr. 29 Wis. 278.) Moreover, during this period, plaintiff in error executed a note for $400 to his father-in-law, and, at one time, paid him $360 on that note. As late as November 1878, he executed a note for $1990 to Joshua B. Fell, securing its payment by a chattel mortgage on certain personal property; and it is in evidence, that he admitted his indebtedness to Fell to the amount of the $1990; so secured. If his father-in-law was owing him so much, as is here claimed, for board and support, why was not such indebtedness set off against the notes, here referred to ? Why were such notes given at all to a man, who was already so largely his debtor ? The house, in which plaintiff in error lives, was sold to him by his father-in-law for $2500, at a time, when, according to the testimony in the record, it was worth $6000. The difference of $3500 between the real value and the price paid can not be regarded otherwise than as a gift, and greatly exceeds the $2500, for which the account for board, support and medicine is claimed to have been compromised. We are of the opinion, that no such indebtedness existed on May 5, 1882, as to justify us in holding, that the deed of trust, executed by Fell to McIntyre on that day, was a fraud upon the rights of plaintiff in error.

It is, furthermore, to be observed, that, even if Fell had been the debtor of plaintiff in error, at the time when he made the voluntary conveyance, now under consideration, such indebtedness, of itself alone, would not operate to defeat the conveyance. It must be shown, that Fell was insolvent at that time. (Moritz v. Hoffman et al. supra.) His conveyance of a portion of his property, in trust for his wife and children, would not be void, if he was solvent, and retained, in his possession, property sufficient to discharge his existing debts. It is not alleged- in the bill, nor established by the evidencej that he was insolvent on May 5, 1882. On the contrary, the proof tends to show, that he had other means, besides the property, conveyed to McIntyre. He received $2500 from the plaintiff in error himself on the sale to him of a house and lot. He sold a farm to one Van Pelt for $4000. He was able to lend plaintiff in error $400, at one time, and $1990, at another. Plaintiff in error himself says, that, when he married Fell’s daughter, Fell “was worth dollars, where I was worth pennies. ” What became of all the means here referred to ? If they were not absorbed in the expenses of living, Fell was not an insolvent man.

In any view, that may be taken of the facts in this record, we can not see, that the circuit court erred in dismissing the bill of plaintiff in error. The judgment of the Appellate Court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    William McDaniels v. The People of the State of Illinois.

      Filed at Springfield October 6, 1886.

      Indictment—for larceny of railroad ticket—allegation of value. An indictment may be sustained and a conviction had under section 77 of the Criminal Code, for the larceny or embezzlement of a coupon or other railroad ticket or pass, without averring or proving the value of the same. The value of such ticket or pass is not a material element in the crime.
    Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    This was an indictment consisting of two counts, the first count of which, omitting the caption, was substantially as follows: That William McDaniels and * * * late of said county, on the 22d day of March, in the year of our Lord, 1886, at and within the county of DeWitt, State aforesaid, a certain railroad ticket, (a better description of said railroad ticket being to the grand jurors unknown,) the personal goods of the Illinois Central Railroad Company, incorporated as such railroad company by the laws of the State of Illinois, doing business in said county, then and there being found, did then and there feloniously steal, contrary to the form of the statute in such case made and provided, against the peace and dignity of the same People of the State of Illinois.
    The second count was like the first, except that it charged the ticket to be the goods and chattels of one. Clyde Antis del.
    The court overruled a general motion to quash the indictment, when the plea of not guilty was pleaded, and a trial had, resulting in a verdict finding the defendant guilty, and fixing his term in the penitentiary at one year.
    The defendant entered his motion in arrest of judgment, for the following reasons: First, because the pretended indictment presented against the defendants by the special grand jury, charges no crime to have been committed by the defendants ; second, because the jury has returned a verdict for felony against the defendant, when the evidence, if it proves a crime at all, wholly fails to prove any greater crime than a misdemeanor; third, for other and divers good and sufficient reasons, to be presented and argued upon the hearing of this motion.
    The court overruled the motion and rendered judgment upon the verdict, to which ruling the defendant excepted, and brings the record to this court by writ of error, seeking a reversal of the judgment.
    Mr. P. T. Sweeney, and Mr. E. A. Lemon, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Mr. Wm. Booth, State’s Attorney, for the People.
   Mr. Justice Craig

delivered the opinion of the Court:

The plaintiff in error, William McDaniels, was indicted under section 77 of the Criminal Code, which' provides, that any person who shall steal or embezzle any coupon or other railroad ticket or pass, with the intent, etc., the person sa offending shall be punished by imprisonment in the penitentiary for the term of one year. The indictment did not aver that the railroad ticket which was alleged to have been stolen had any value, and upon this ground it is claimed that the indictment was. defective, and the court erred in overruling a motion to quash.

In an indictment for larceny at common law, or under sections 167 and 168 of our Criminal Code, it would be necessary to allege in the indictment the value of the property stolen, and on the trial prove the value of the property; but at the same time it was within the power of the legislature to enact a law which might prevent the stealing or embezzlement of an article which had no value, and impose a penalty upon a person who might violate such law. That was done by the enactment of section 77 of the Criminal Code, and an indictment may be sustained and a conviction had under the section, without averring or proving the value of the coupon, railroad ticket or pass. Indeed, the value is not a material element in the crime. The crime is complete when a person steals or embezzles the coupon, railroad ticket or pass, whether the article be of great or small value, or of no value.

This section, so far as the question here involved is concerned, may he likened to section 172 of the Criminal Code, which provides, that whoever feloniously takes or steals any horse, etc., shall be imprisoned in the penitentiary not less-than three nor more than twenty years. In passing upon, this statute in Hoge v. The People, 117 Ill. 35, we held that-it was entirely independent of sections 167 and 168 of the-same code, and in a prosecution under it a jury was not. required to return the value of the stolen property, as is required in an ordinary case of larceny. Section 77, under which this indictment was found, is entirely independent of the other sections of the statute in relation to larceny, and no reason exists for alleging a value in the indictment, or proving value on the trial. The statute creates the offence, and provides one year imprisonment in the penitentiary as. a penalty for its violation, and it contains no provision whatever in regard to the value of the article stolen or embezzled. We think the indictment conformed to the statute, and the motion to quash was properly overruled.

The judgment of the circuit court will be affirmed.

Judgment affirmed.