23 N.E.2d 57 | Ill. | 1939
Minnie A. Hazlett and I. Newton Peasley filed in the circuit court of McLean county a complaint asking for the partition of 431 acres of land located in that county. The land in question had been the property of Isaac N. Peasley, the father of the plaintiffs and certain of the defendants. He died intestate leaving no widow surviving but seven children as his only heirs-at-law. Luther J. Moore, husband of one of the defendant heirs, upon the death of Peasley was named as administrator of the estate. Shortly after the death of Peasley and after letters of administration were granted to Moore, a deed was executed signed by the heirs which recited therein that it was made for the purpose of conveying to the grantee, Moore, the full legal title thereto. Moore executed a declaration of trust to the heirs. It recited that the deed from the heirs to him was not as a purchaser in his own right but in trust to execute certain oral suggestions and agreements which the instrument stated were concurred in by the grantors named in the deed, and that of his own volition and in consideration of the execution *194 and delivery to him of the deed mentioned he proposed to carry out the terms and conditions of the trust. The conditions, in substance, were that the grantee named was to manage and control the real estate during his ownership for the use and benefit of the heirs; that he was to apply the rents, issues and profits to the payment of the mortgage liens against the real estate, pay the just debts and funeral expenses of Isaac N. Peasley, deceased, and the costs of administering the estate. The grantee agreed to sell and convey the real estate as soon as a satisfactory price, agreeable to the heirs, could be obtained, and, as administrator, should distribute the net proceeds among the heirs according to their respective interests. The declaration of trust recited that the several heirs and their spouses had agreed that, by the delivery of the deed to Moore, they parted with all their title to the real estate and had agreed in lieu thereof to accept in cash their respective shares of the net proceeds of the sale thereof, less the amount required for certain mortgage liens, debts and deductions. Evidence was heard by a master in chancery who made a report to the court, to which objections were filed and stood as exceptions. The court sustained the exceptions and entered a decree in favor of the plaintiffs. The defendants appealed from the decree.
Certain testimony was offered tending to explain the circumstances leading up to the execution of the deed and declaration of trust, but was thereafter withdrawn, and is not before us. The two instruments were introduced in evidence. They were dated the same day but copies of the declaration of trust were not delivered to the heirs until some days thereafter. Moore was discharged as administrator but had a small amount of cash in his possession undistributed. He continued in the management of the land after his discharge as administrator and filed a report as trustee and has asked for trustee's and attorney's fees. The master concluded from the record that there was an equitable conversion of the real estate; that the heirs had conveyed *195 all of their title to Moore which he held under an active trust, and that by their agreement the plaintiffs were estopped from having partition, and he recommended the dismissal of the complaint for want of equity. The chancellor held that as there was no definite time within which the real estate should be sold and as the price for which it was to be sold was to be determined by the heirs, that they were the equitable owners of the land and had the right to have the trust terminated and the land partitioned. The legal effect of the acts of the parties in the execution of the instruments mentioned and the incidental questions passed upon by the master and chancellor are now before this court for determination.
Counsel for the defendants state that this is a fitting case for the application of the doctrine that equity considers that done which ought to be done. To create an equitable conversion requires a clear and imperative direction. (Lockner v. VanBebber,
In Fox v. Fox,
In Ashton v. Macqueen,
Although in Harris v. Ingleside Building Corp.
The object of partition is to enable those who own property in common to sever their interests so that each may take possession of, enjoy and control his separate estate at his own pleasure.(Mechling v. Meyers,
Except as to certain financial adjustments incident to the management of the farm and concerning which there is *199 no controversy, the decree of the circuit court is final. The issues made involve a freehold. (Fox v. Fox, supra;. Ashton v.Macqueen, supra.) A direct appeal to this court was proper. Under the circumstances disclosed by the record the chancellor properly terminated the trust, vested the property in the heirs and awarded partition. The record discloses that certain moneys collected were in the hands of the trustee, and the court by its decree reserved the question of compensation and attorney's fees, and referred the matter to the master for a final accounting.
We are in accord with the finding of the court, and the decree is, therefore, affirmed.
Decree affirmed.