| Ill. | Nov 20, 1883
delivered the opinion of the Court:
This was a hill in equity, brought by Cyrus S. Kellogg, in the circuit court of Carroll county, against Laura P. Hale and others, to compel a conveyance of two hundred and fifty acres of land in Carroll county, which formerly belonged to Kellogg, but which, at the time of filing the bill, was held by the defendant Laura P. Hale, in her name. Kellogg was married to Laura P. Hale in 1848, in Carroll county. They resided there until the spring of 1853, when they moved to California. A short time before starting, Kellogg and his wife conveyed, by an absolute deed, the lands in controversy to Philetus Peck. The lands were not sold to Peck, but the understanding was that he should hold the title in his own name, rent the farm, keep it in repair, and make such a disposition of the lands, by sale or reconveyance, as Kellogg might in the future direct. In the summer of 1857 Mrs. Kellogg returned to Carroll county on a visit. She brought with her a letter, written by Kellogg to Peck, directing him to convey the Carroll county lands to her. Upon the presentation of the letter Peck conveyed the lands as requested, and Mrs. Kellogg has from that time to the present owned and received the rents from the lands, and paid the taxes, and kept up the repairs. At the time the deed was made to Mrs. Kellogg, she and her husband were residing together on good terms, and they continued to reside together until 1865, when they separated. In 1871 she obtained a divorce from her husband, and subsequently married Augustus Hale.
Kellogg, the complainant, seeks to obtain a decree in' his favor, as we understand the argument, on the ground that the deed from Kellogg to Peck was a conveyance to his own use, and under the Statute of Uses, by operation of law, he became reinvested with the title to the property. The trust here was not in writing. The deed was absolute in terms, and purported to convey the title to Peck, but when the transaction is viewed in the light of the evidence, it appears that the property was conveyed to Peek in trust. He was to hold the title, lease the property, collect the rents, sell or reconvey, or make such disposition of the property as Kellogg might order. Was this such a trust as the Statute of Uses would execute ? The answer to this question may be found in the former decisions of this court.
In Meacham, v. Steele, 93 Ill. 146, where a question of this character was under consideration, it is said: “Where the conveyance imposes on the trustee active duties with respect to the trust estate, such as, to sell and convert into money, or to lease the same and collect the rents, issues and profits thereof, and -pay them over to the beneficiary, it creates a trust which the statute does not execute. ” Here Peck, the trustee, had the entire charge of the property. It was his duty to rent, and collect the rents, pay the taxes, keep up the repairs, and in addition to this, upon request, sell and convey the property. The facts seem to bring the case directly within the rule announced in the ease cited. •
In Kirkland v. Cox, 94 Ill. 400" date_filed="1880-01-15" court="Ill." case_name="Kirkland v. Cox">94 Ill. 400, the effect of the Statute of Uses was under consideration, and it was held where an estate is conveyed to one person, for the use of, or upon a trust for, another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, although express words of trust are used. But this has reference only to passive, simple or dry trusts. In such case the legal estate never vests in the feoffee, but is instantaneously transferred to the cestui que use as soon as the use is declared. The facts surrounding the conveyance in this case do not bring the trust within what may be called a passive, simple or dry trust. The duties of the trustee had not been performed under the trust imposed by the 'deed and contract. Those duties were active, and so continued until ~ the lands were conveyed, under the order and direction of Kellogg. Perry on Trusts, sec. 305, in speaking in regard to Special or active trusts, says: “If any agency, duty or power be imposed on the trustee, as by a limitation to a trustee and his heirs to pay the rents or to convey the estate, or if any control is to be exercised or duty performed by the trustee, * * * the operation of the statute is excluded, and the trusts or uses remain mere equitable estates. ” But the citation of other authorities on the question is useless. We are satisfied that the deed made to Peck passed the title to the property to him, unaffected by the Statute of Uses.
The only other question to be considered is, whether the -deed from Peck to Mrs. Kellogg, made under the order and direction of Kellogg, passed the title to the property to Mrs. Kellogg. It is true that no consideration -was paid for this conveyance, but when the deed was executed Kellogg was free from debt, and was worth, over and above the Carroll county lands, somewhere in the neighborhood of $20,000. He had no children, and the business in which he was engaged at the time was somewhat hazardous. Under such circumstances, if he thought proper to make a settlement of the property on his wife he had a right to do so. It has long been settled, ‘both in England and this country, that a conveyance of property from the husband to the wife, when made as a provision for her, will be sustained and upheld in courts of equity, when the rights of creditors are not affected. (Moritz v. Hoffman, 35 Ill. 553" date_filed="1864-04-15" court="Ill." case_name="Moritz v. Hoffman">35 Ill. 553; Yazel v. Palmer, 81 id. 82; Hockett v. Bailey, 86 id. 76.) As to the object of this conveyance there can be no doubt. At the time, Kellogg was in good circumstances, in no manner involved. The relations then existing 'between him and his wife were of the most intimate character. He no doubt thought it was an opportune time to settle upon her such an amount of property as would give her a comfortable support, if in the future adversity should overtake him and he should be without property.
We are not, however, without proof in regard to the object of the conveyance. Mrs. Hale, in her evidence, says: “Kellogg, at the time he wrote to Peck requesting him to convey the land to me, stated to me that I had always been a good wife, and that to insure me from coming to want by reason of any business reverses he might sustain in California, he intended to have Peck deed that land to me, to secure me from coming to want through any7 reverses that might come to him. It was his own voluntary act, without any solicitation from me whatever. There was no arrangement by which I was to hold the land for Kellogg, but it was understood to be for myself.” This testimony places the character and object of the transaction beyond dispute. The conveyance to Mrs. Kellogg was the result of the voluntary act of the complainant, her then husband, and ivas intended as a provision for her, and we perceive no ground upon which a court of equity can interfere, and at this late day take the property away from her and give it back to the complainant.
The decree of the circuit court will be affirmed.
Decree affirmed.