Dorman v. Dorman
58 N.E. 235
Ill.
1900
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

The evidence in this case clearly establishes that Martin L. Dorman purchased the land in the year 1873 from A. J. Willey; that he paid the consideration therefor, but at the time the deed was made the title thereto, at his request, was conveyed to Mary A. Dorman, his wife. A resulting trust arises, by implication of law, from the acts of the parties. (1 Perry on Trusts, sec. 134; Donlin v. Bradley, 119 Ill. 412; VanBuskirk v. VanBuskirk, 148 id. 9.) When the evidence shows the payment of the purchase money by one and the conveyance of the title thereby purchased to another, between parties who are strangers to each other, the law so construes these two facts as to make them constitute a resulting trust. (Smith v. Smith, 85 Ill. 189; VanBuskirk v. VanBuskirk, supra.) If the legal title is taken in the name of the wife such implication does not arise, it being the presumption that the same was intended as an advancement. (Smith v. Smith, 144 Ill. 299.) Such presumption may, however, be rebutted by parol testimony, if the same is clear and satisfactory. Thus, it is said in Perry on Trusts (sec. 147): “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.” The rule thus announced has been fully recognized by this court in numerous cases. Taylor v. Taylor, 4 Gilm. 303; Adlard v. Adlard, 65 Ill. 212; Wormley v. Wormley, 98 id. 544; Johnston v. Johnston, 138 id. 385; Smith v. Smith, 144 id. 299; Goelz v. Goelz, 157 id. 33; VanBuskirk v. VanBuskirk, 148 id. 9; Pool v. Phillips, 167 id. 432.

The controlling question in this case is, did Martin L. Dorman, at the time he caused the title to this land to be placed in his wife, intend to make an absolute gift of the property to her, or was it his purpose that she should simply hold the title for him? The presumption is he intended the same as an absolute gift. The burden of proof is upon him to overcome such presumption.

We have examined the record in this case with much care and are fully convinced that Martin L. Dorman never intended to give this property to his wife, but that he took the title in her name with the understanding and expectation that she would re-convey the same to him on request. It clearly appears from competent and credible evidence that Martin L. Dorman took possession of the property almost immediately after the purchase; that he made permanent and lasting improvements, paid the taxes and after a time occupied it with his family as a home; that he at all times controlled and managed it as his own, and that his wife recognized his right so to do, and at least on one occasion stated that the land was deeded to her in trust and that she intended to deed it back to her husband; that this property constituted the principal part of his entire estate, and that he had a family of small children dependent upon him for support. The facts that the husband may have taken possession of the land, improved it, paid the taxes thereon and occupied it with his wife as a homestead would not be sufficient, alone, to overcome the presumption of a gift, for the reason there is nothing in tb ese facts inconsistent with the theory of an advancement; still, we think these facts, taken in connection with the admission of the wife that she held this property in trust for the benefit of her husband, and the further fact that this property, at the time of the conveyance, constituted the bulk of his estate, sufficient to rebut the presumption of an advancement.

Martin L. Dorman had been in possession of the property from the time of the purchase thereof, and his right to use and possess the same seems never to have been called in question until a short time before the filing of the original bill. His possession was notice to the world of all his rights, and laches cannot be imputed to him. Wormley v. Wormley, 98 Ill. 544; McNamara v. Garrity, 106 id. 884.

It is contended by appellants that a court of equity is powerless to grant relief, in cases of this character. This court has heretofore, in a number of cases where the facts are substantially as here established, granted relief similar to that prayed for in the cross-bill herein. Adlard v. Adlard, 65 Ill. 212; Wormley v. Wormley, 98 id. 544; Stone v. Wood, 85 id. 603; Pool v. Phillips, 167 id. 432.

It is further contended by counsel for appellants that Martin L. Dorman caused the property to be conveyed to his wife to hinder or defraud or delay his creditors. It is undoubtedly the law that where a conveyance has been made for such purpose equity will not interpose to restore to the grantor or his heirs the title to the property so fraudulently conveyed. (Dunaway v. Robertson, 95 Ill. 419; Francis v. Wilkinson, 147 id. 370; McElroy v. Hiner, 133 id. 156.) But no such issue is made by the pleadings in this case, and that question is not before us. Martin L. Dorman charged in his cross-bill that the property was purchased with his money, and that Mary A. Dorman, at the time of her death, held the same in trust for his benefit. There is no allegation in the answer to the cross-bill that the title to this property was conveyed to Mary A. Dorman for the purpose of hindering or delaying or defrauding the creditors of Martin L. Dorman. This court held in Crone v. Crone, 180 Ill. 599, which was a bill to enforce a resulting trust, that a defendant in chancery is bound to apprise the complainant of the nature of his defense, and cannot avail himself of matters of defense appearing from the evidence but not set up in the answer, and refused to consider the question whether or not the property had been conveyed to defraud creditors as the answer contained no such allegation, although the evidence tended to show that fact.

We do not deem the question of the competency of Martin L. Dorman as a witness in his own behalf of any importance. The court seems to have limited his testimony to transactions which took place after the death of his wife. As the trial was before the court and there is ample evidence in the record to sustain the decree without the consideration of his testimony, we will presume the trial court considered only such testimony as was competent and disregarded such as was incompetent.

The decree of the circuit court will be affirmed.

Decree affirmed.