146 Ill. 635 | Ill. | 1893
delivered the opinion of the Court:
We are of opinion that the decree entered, dismissing the bill in this cause for want of equity, must be affirmed. The deed from Nathan C. Swan to William Boades, dated March 2, 1849, was for the expressed consideration of $125. The evidence shows that said Boades, with his family, went into possession of the land at once, cleared and improved it, erected thereon a dwelling, barns and other buildings, and has ever since occupied it as a-homestead, claiming to be the owner in fee. Mrs. Elizabeth Boades, in whose favor the trust is claimed to have resulted, upon the execution and delivery of said deed to her husband, William Boades, lived in the homestead with her husband from 1849 until her death, in 1876, and no act on her part looking to an assertion of ownership or claim of title is shown. True, if her declarations, made out of the presence of William Roades, were competent, it is shown that when there was some talk of dividing up the property among the children, she objected to the homestead being given to a daughter of William Roades by a former marriage, but the reason given precludes the idea that she then claimed to own the land. Augusta Roades, wife of one of complainants, testified, at their instance, that about twenty years before testifying she had a conversation, in respect of this land, with Elizabeth Roades, and that “in speaking of dividing, in the first place she wanted her son, my husband, to have the homestead, as he was her only son, and as it had belonged to her.” This is the entire statement of that conversation by the witness, and while not competent as against appellees, the appellants, having introduced it, can not complain of its consideration. This statement is wholly inconsistent with a claim of present ownership by Elizabeth Roades, and with the farther claim that she did not know that the title was in her husband. If she thought she was the owner, she would have proposed giving her son the land, and have asserted some present right to control its disposition. Instead, she expressed a desire—a wish—that he might have it because he was their only son, and the land had originally, or at some time, belonged to her. This statement, that the land had belonged to her, is, under the facts shown, entirely consistent with ownership by the husband under the deed of March 2, 1849. But aside from this, there is ample evidence in this record that she knew the title was in her husband, and acquiesced in his assertion and claim of ownership. In 1852 she joined her husband in a deed to the south half of the forty acres conveyed to him by the deed of March 2, 1849, for the purpose of releasing her dower, and acknowledged the same in the usual form. The land was notoriously called and known as William Roades’ land. It was so shown upon the county map, in the house. It was always assessed in his name, and he paid the taxes every year since the time he acquired title.
Appellants introduced in evidence the declarations of Nathan G. Swan, grantor in the deed upon which the trust is claimed to arise, in derogation of the title he conveyed, and also statements and declarations of Elizabeth Boades, all made out of the presence of William Boades. This evidence was hearsay, and incompetent as against appellees. (Corder v. Corder, 124 Ill. 229.) The testimony of no one who was present at the time of the conveyance by Nathan G. Swan to William Boades, or who knew of the attending facts and circumstances, was introduced, and the hearsay evidence being properly excluded, there is in this record no evidence tending to overcome the presumption of purchase by William Boades, other than loose declarations said to have been made by him. It is shown that William Boades was, at the time of the hearing, over eighty-one years of age, and feeble and infirm, which undoubtedly accounts for the non-appearance of his testimony in this record. His son, one of complainants, testifies to a single conversation in 1865, in which he states, “He told me the forty acres was my mother’s.” The witness then says that the forty acres “spoken of by my father, is land that belonged to my mother’s father, and the forty acres that was deeded to my mother by her father, which the house stands on,—the same forty on which my father and step-mother now reside.” It will scarcely need farther comment to show the unreliability of the memory of this witness, testifying to declarations made twenty-seven or twenty-eight years previously. There is no pretence that this forty acres of land, or any forty acres, was deeded to his mother by her father, or by any one else. Indeed, the record shows that her father died le.aving eight children, to whom his land descended, and that Nathan C. Swan, who was the grantor in the deed to William Boades, and one of the heirs, bought the interest of all his other heirs but one, Mrs. Mary Witt, in the land. Again, twenty acres of the forty, upon which the house was situated and where appellees lived, were traded for, in 1852, by William Boades. Moreover, the witness does not pretend to give the language employed. “He told me the land was my mother’s,” is a conclusion of the witness, and not the language of his father, speaking in the present tense, of the then condition of affairs. The mother was then in life, and lived eleven years afterwards. There was then no controversy in respect of the land- or its ownership. It could not have been anticipated that the mother would die and a controversy arise out of the father’s marrying again, and hence there was nothing, so far as appears, to fix the conversation, which seems to have been entirely casual, in the mind of the witness. The testimony, depending as it does upon the accuracy of recollection of a chance conversation had more than a quarter of a century before, nothing being shown to have transpired in the meantime to refresh or re-charge the memory, was not such evidence as would clearly and satisfactorily establish a resulting trust. Reeve v; Strawn, 14 Ill. 94; Bragg v. Geddes, 93 id. 40; Harris v. McIntyre, 118 id. 275; Corder v. Corder, supra; Heneke v. Floring, 114 id. 554; Green v, Deitrich, id. 636; Furber v. Page, 143 id. 622; Towle v. Wadsworth, 147 Ill. 80.
The presumption arising from the transfer of the legal title, and the recitals, in the deed, is, that the grantee was the purchaser with his own means, and to overcome this presumption, and establish a resulting trust in another by parol, the doctrine is settled in this State by the foregoing cases, in entire harmony with the rule elsewhere, (Pomeroy’s Eq. Jur. 1040,) that the evidence must be full, clear and satisfactory to the mind of the court, showing that the transaction was such, at the moment the title vested, that the trust arose. All the authorities agree that parol evidence to establish the trust must be of such clear and convincing character as to satisfy the mind of the chancellor that the title was taken by the grantee under such circumstances that the trust at once resulted. Tested by this well established rule, it seems clear the evidence falls short of its requirements. The same is true of the testimony of Augusta Roades, if it was otherwise proper to consider it against appellees. She, being the wife of one of the complainants, was incompetent to testify. (Rev. Stat. sec. 5, chap. 51; Smith v. Long, 106 Ill. 485.) But if considered, it shows no more than ap admission by appellee William Roades that his wife, Elizabeth, “to begin with, ” owned land her father left her, which “she exchanged for the homestead.” And the same is true of the testimony of Mrs. Brown. She testifies to a conversation with appellee in which he made substantially a like admission, but claimed he owned the land,—that it was deeded to him, and he owned it. The witness does not pretend to give the exact phraseology, and we are required to depend, not only upon the memory of the witness, but her capacity to draw the correct conclusion, and reproduce, in her own language, the thought expressed. Such evidence is generally very unsatisfactory, especially where, as here, the conversation is casual, about a matter in which the witness has no special interest, and where the attention of the person whose conversation is attempted to be detailed has not been called to the necessity of expressing himself accurately or fully. The court was asked, upon parol evidence of this character, to divest the legal title of William Roades in the land. It is unquestioned that for forty-three years before the filing of this bill he had been in the actual possession of the land, claiming title under his deed; that he erected houses, barns and other buildings thereon; fenced,"planted orchards, and otherwise improved it, and paid all taxes for all these years. After this long assertion of right on the one side and acquiescence on the other, the court should not disturb the legal title except upon the clearest and most satisfactory evidence. From a most careful research of this record we are unable to find the clear and satisfactory proof required, to authorize the court to declare a resulting trust in complainants.
It may be, as it is contended, that as between Nathan 0. Swan and Elizabeth Boades the lands respectively held by each formed the consideration for the transfers, but it by no means follows that as between William Boades and Elizabeth the consideration expressed, and acknowledged in the deed to have been paid, was not in fact paid by him, or, what is perhaps more probable, that the conveyance by Nathan 0. Swan to William Boades was made at the instance and with the consent of the wife, she intending thereby to give the land to her husband. This would be entirely consistent with the subsequent conduct of both. If the deed was so made and intended with full knowledge of her rights, and without fraud or undue influence exerted by the husband, it requires the citation of no authority to determine that no trust would result in her favor. While an advancement can not be presumed, as it might be if the wife had been the beneficiary, yet the wife might invest the husband with title through a third person, and thereby execute a valid gift. We need not, however, pursue this inquiry, for the reason, as already seen, that the complainants have failed to make out a case entitling them to relief.
The decree of the circuit court was correct, and will be affirmed.
Decree affirmed.
