214 Ill. 308 | Ill. | 1905
delivered the opinion of the court:
The cross-bill in this case alleged that, when Anna Deuter died, she held the title to parcel No. 3, otherwise described as 6511 Lafayette avenue in Chicago, upon an express trust in favor of her husband, John'F. C. Deuter. Upon the hearing, however, in the court below, the appellant abandoned her contention as to the existence of an express trust in said property, and as to the existence of any homestead right therein. Therefore, there are only two questions, arising upon the record for the determination of this court.
First—The first is, whether at the time of the decease of Anna Deuter, the first wife of John F. C. Deuter, deceased, she was the owner of parcel No. 2, otherwise known as 123 West Sixty-fifth street, or whether she held the title to that parcel under a resulting trust in favor of her husband, John F. C. Deuter, deceased. If Anna Deuter owned parcel No. 2 at the time of her decease, then the title thereto was inherited by her seven children, and the present appellant, Amanda Deuter, the second wife of John F. C. Deuter, deceased, had and has no interest whatever therein.
The property or lot, known as 123 West Sixty-fifth street, was conveyed by warranty deed, dated November 20, 1891, .by Cyrenius Hall and his wife as grantors, to Anna Deuter, and this warranty deed was recorded in the recorder’s office of Cook county on December 12, 1891. The evidence tends to show that the consideration for this conveyance from Hall and wife to Anna Deuter, to-wit, the sum of $2700.00, was paid by John F. C. Deuter, Anna Deuter’s husband. As a general rule, where one of two parties, who are strangers to each other, takes the title to a piece of land, but the other advances the purchase money, a resulting trust will exist in favor of the latter, and the holder of the legal title will be regarded as the trustee of the party furnishing the money. (Mahoney v. Mahoney, 65 Ill. 406; VanBuskirk v. VanBuskirk, 148 id. 9). If John F. C. Deuter and Anna Deuter had been strangers to each other, the facts, that he paid the purchase money for the land, and that the conveyance of it was made to her instead of to him, might be sufficient to establish a resulting trust. But it is also a general rule that a purchase of land by a husband in the name of his wife will be presumed to be an advancement, and not a trust; and the burden is on the party claiming a trust to prove it. Such presumption may be rebutted by parol testimony if the testimony is clear and satisfactory; or by proof of such acts and circumstances as clearly show that the intention was not to make an advancement, but to accomplish some other lawful purpose. (Johnston v. Johnston, 138 Ill. 385 ; Maxwell v. Maxwell, 109 id. 588; Dorman v. Dorman, 187 id. 154). As is said by Perry in his work on Trusts, (sec. 147 quoted in Dorman v. Dorman, supra) : “Whether a purchase in the name of a wife or child is an advancement or not is a question of pure intention, though presumed, in the first instance, to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received either to rebut or support the presumption, and any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction may be received for the same purpose.” In the case at bar, no acts or facts on the part of John F. C. Deuter, or of Cyrenius Hall, the grantor in the deed to Anna Deuter, are shown, which are sufficient to rebut the presumption that the property was conveyed to Anna Deuter as a settlement or gift.
The cases of Skahen v. Irving, 206 Ill. 597, Pool v. Phillips, 167 id. 432, Wormley v. Wormley, 98 id. 544, and Ad-lard v. Adiard, 65 id. 212, are referred to by counsel for the appellant in support of their theory,, that Anna Deuter held the property in question under a resulting trust in favor of her husband. It is unnecessary to set forth in detail the facts of the cases thus referred to. It is sufficient to say that such facts and circumstances, as are shown to have existed in those cases as indicating an intention not to make a settlement but to establish a resulting trust, are not shown to exist in the case at bar. As, therefore, the appellant here, cross-complainant below, did not introduce such proof as rebutted the presumption that the property was conveyed to Anna Deuter as a settlement, we are.of the opinion that the court below decided correctly in holding that there was no resulting trust, and that the property was owned by Anna Deuter.
Second—The second question is, whether or not the trial court erred in dismissing the cross-bill for want of equity. We think there was no error in the action of the trial court in this respect. The subject matter of the cross-bill was not germane to the subject matter of the original bill. The original bill was filed by the heirs of Anna Deuter for the partition among themselves of certain land inherited by them from Anna Deuter. John F. C. Deuter was deceased at the time of the filing of the original bill, and by his decease all his interest in the two parcels, Nos. 2 and 3, of dower or otherwise had ceased. The cross-bill introduced into the case another parcel of land, not mentioned in the original bill, and prayed that this vacant parcel No. 1 should be sold for the purpose of paying debts due, not from the estate of Anna Deuter, but due from the estate of John F. C. Deuter, deceased. Where a bill is filed for the partition of one piece of property, belonging to the estate of one person, and a cross-bill is filed to sell another piece of property, belonging to the estate of another person, for the payment of the debts of the latter, it cannot be said that the relief, sought by the cross-bill, is germane to the relief asked for in the original bill. Parcel No. 1, which was introduced into the case by the cross-bill, belonged to John F. C. Deuter at the time of his death, and the title thereto never had been in his wife, Anna Deuter.
For the reasons above stated, the decree of the circuit court is affirmed.
£>*cr** affirmed.
