11 Ill. App. 576 | Ill. App. Ct. | 1882
We think the evidence shows that the sole consideration for the execution by the appellant, Mrs. Lake, to the appellee, Freer, of the deed by appellant and her liusband to the appellee, and the delivery to the latter of appellant’s abstract of title to the premises in question, was the stipulation or undertaking, on the part of appellee, contained in the writing signed by him, which he sent to and submitted to appellant with the draft of the deed, which he proposed to have appellant and her husband execute to him. Whether such proposed stipulation or undertaking, on Freer.’s part, was the sole consideration for the execution of such deed and the delivery of the abstract by Mrs. Lake to him or not, it is clear that the proposition continuing, and being accepted by ■ Mrs. Lake by executing the deed, and delivering over to Freer, with such deed, the abstract of title, and putting the latter in possession of the premises in pursuance of the terms of such writing, the matter thereby ripened into a contract on the part of Freer, embracing just the terms contained in said written proposition, so as to become a written contract on his part, which was supported by a good, valid, and sufficient consideration.
We are further of the opinion that such written proposition, when so accepted, constituted a valid and binding declaration of trust on the part of appellee; that by it he made himself trustee for appellant, under a special or qualified trust; and that such trust may be declared and enforced by a court of equity, because it is in every respect created and manifested in accordance with the requirements of the law, and is based upon a good arid sufficient consideration. Some observations have been made against this view by the court below and appellee’s counsel here, on account of the forms in which appellee expressed his undertaking. It is this: “ I shall consider myself honorably bound, if anything can be made out of the property during the next three years, more than the interest, taxes, insurance and repairs, to give Mrs. Lake the benefit' of it. This has been my uniform course in similar cases.” It is said that the expression “ honorably bound ” shows that appellee did not intend to bind himself legally to retain the property for three years; and the court below permitted appellee to testify that he had no intention of so binding himself by such writing.
It seems to us that it would be introducing into equity jurisprudence a somewhat novel doctrine, to hold, that although confidence reposed is of the very essence of every express trust, that although such trust -be founded upon a valuable consideration actually received by the person declaring it from the beneficiary, yet, if the person so declaring it shall go so far, in his declaration of the trust, as to expressly pledge his honor to its faithful performance, that, will so loosen and relieve his conscience, that no duty will attach of which a court of conscience can take cognizance. That some such doctrine is struggling for recognition in this progressive age is quite probable, since we find that the appellee in this case, who, it is said, is a lawyer of long standing and great ability, as well as experience, actually sold and conveyed away the premises in question within a mouth after he thus pledged his ■ honor to keep and manage them for three years (in view of a probable appreciation of their value), for the appellant’s benefit, but in total disregard of her supposed rights therein. We do not, however, hesitate to say that such a doctrine as that will have to struggle hard and long before it can receive the sanction of this court.
The trust here having been declared by writing signed by the party who was enabled to declare such trust, we are of opinion that it was improper to admit parol evidence to contradict the intention expressed upon the face of the instrument itself; for that was to allow parol evidence to vary, contradict or annul a written instrument. Perry on Trusts, 1st Ed. Sec. 76, and cases in note 10.
The court below declined to hold that such written instrument amounted to a declaration of trust, which could not be varied, contradicted or annulled by parol evidence; but on the contrary permitted the appellee to give parol evidence to con- 1 tradict the intention expressed upon the face of the instrument itself, thereby virtually annulling its effect, and thereupon found the equities for the defendant below, and dismissed complainant’s bill with costs. Being of the opinion that the court below erred in so ruling, we must reverse the decree and remand the cause with directions to the court below to enter a decree establishing such written instrument as a valid declaration of trust on the part of the defendant below, whereby he constituted himself the trustee of complainant under the qualified trust expressed therein, and which trust should be carried into execution in accordance with the intention manifested on the face of said instrument, so far as it is practicable under the circumstances of the case so to do. But if the defendant had incapacitated himself from executing such trust, by selling and conveying away said premises soon after said declaration of trust became operative, and in violation of such trust, then he should be decreed to make compensation to complainant upon equitable principles.
Decree reversed.
