| Ill. | Oct 31, 1890
delivered the opinion of the Court:
This was a bill in chancery, brought by Charles H. Fox, a-grandson and one of the heirs at law of William H. Price, deceased, against Henry W. Price, the son and only other heir at law of said decedent, and Louisa Middaugh and others, the heirs at law of George W. Noble, deceased, to establish and enforce a trust alleged to have been created in the year 1849,. between said William H. Price and said Noble. The original bill was filed June 29,1886, and a demurrer thereto having been sustained, an amended bill was filed November 30,1886. The defendants appeared and answered, and Henry W. Price filed a cross-bill, setting up substantially the same matters alleged in the amended bill, and praying, in his own behalf, the same relief. The cross-bill was answered, and the cause being heard on pleadings and proofs, a decree was rendered in accordance with the prayer of the amended and cross-bills, and the defendants, the heirs of said Noble, bring the record to this court by appeal.
The case made by the bill and cross-bill, when relieved of much of its verbiage, is substantially as follows: In the year 1836, William H. Price became a resident of Chicago, and succeeded in accumulating a considerable amount of real and personal property, so that in 1847, he was in possession of certain lots of land in Chicago to which he had an equitable title, and on which were situated several dwelling-houses and a planing-mill. Sometime during the year 1847, said dwelling houses, planing-mill and a large amount of machinery and lumber were totally destroyed by fire. In the spring of 1848, he erected on lots four and five, in block forty-six, in the Original Town of Chicago, those being the lots which are now the principal subject of controversy, a large brick four-story building, worth not less than $20,000, and furnished it with the necessary machinery, and during that year and up to1 October in the year following, carried on successfully and profitably in said building the planing-mill business, and the-manufacture of sash, doors and blinds. Out of the profits of said business he was enabled to pay and discharge most of the-indebtedness arising from the construction of said building, the procurement of said machinery, the purchase of lumber and other expenses incident to carrying on said business, so-that in October, 1849, his indebtedness amounted to comparatively a small sum of money, and might have been fully paid and satisfied out of the profits of said business for the year-then next ensuing.
Sometime in 1848, Price determined to go to California, where gold had then recently been discovered, with the intention of being absent about one year. In anticipation of his absence on said trip, he sought to leave his property matters and business in such situation, that said business might be-carried on, his remaining indebtedness provided for, and his-property and thé good will of said business preserved, so that-on his return he might receive the same back with all accruing profits.'
Noble, who was Price’s brother-in-law,. had come on from the east the year previous, and since his arrival in Chicago-had been employed by Price in some capacity in his business. Noble was poor and substantially without means, but 'was a person in whom Price reposed very great confidence, and who-had become familiar with Price’s property and business. Price, accordingly, entered-into some arrangement or agreement with-Noble, the precise terms of which the complainants are unable to give, but which was in substance and effect that Price should turn over to Noble his said property and business, in trust, to hold, manage and control said property and carry on said business, as Price’s trustee, during his absence, and on his-return, to restore the same to him, and render to him an account of the use, increase and profits thereof. In pursuance of this arrangement, Price, sometime before his departure for California, transferred to Noble the equitable title he held to various parcels of real estate in Chicago, and among them to the south thirty-five feet of said lot four and said lot five, his title as to those lots being that of a vendee under certain ex-ecutory contracts of purchase, the purchase money having then been already paid by Price, or being subsequently paid by Noble out of means put into his hands for that purpose by Price, and the title under said contracts of purchase being afterwards taken by Noble in his own name as trustee for Price. Price’s departure for California was delayed until some time in October, 1849, and up to that time he remained in possession, control and management of said property and business. Upon his departure Noble at once entered into possession of it as trustee for Price, under said arrangement, and continued thereafter to carry on said business.
Price, after he left, was heard from once while crossing the isthmus, since which he has never been heard from, the supposition being that he died either there or somewhere else on the way. Soon afterward Noble conceived the plan of privately and clandestinely converting said property and business to his own use, and of claiming them as his own, and of secretly and quietly suppressing and destroying all evidence of the manner in which he had received and was holding them, and of creating color of title in himself to the same. In furtherance of said plan he obtained from Price’s wife the books and papers relating to Price’s business affairs in her possession, pretending that he needed them in carrying on the business, and refused afterwards to return them. He also sought to conceal not only his acts and doings under said trust but the trust itself, and to propagate the belief that he had bought out Price arid was the owner of said property in his own right. Among other things, he suffered said lots four and five, as well as the other real estate derived from Price, to be sold under execution on judgments against Price for certain small amounts, when he had in his hands as trustee sufficient funds to satisfy said judgments, or to redeem said lots from such sales, and instead of making such redemption, he allowed the title under such sales to be perfected in the purchaser, and then bought in such title, using the trust funds for that purpose, and took conveyances to himself. From the business and property placed in his hands, he also paid off all liens, indebtedness and claims against Price and perfected title in himself, and bought other real estate and accumulated a large personal property, all of which came from said trust fund and property, and was a part of the income and increase thereof. Said real estate largely increased in value, and said Noble, at his death, which occurred on or about December 15, 1885, left in bank about $80,000, which is now in the hands of his administrators, and is covered by said trust. At the time of his death he still held the title to said lots four and five, and to the other parcels of real estate above mentioned, without having ever accounted with said Price or his legal representatives in the matter of his said trust, and without disclosing said trust or his acts and doings under and by virtue thereof.
The family left by Price at the time of his departure consisted of his wife, who has since died, and two children, a son .and a daughter, the oldest of whom was not more than thirteen years of age. The son was Henry W. Price, the complainant in the cross-bill, and the daughter was afterwards married to Joseph H. Fox, and died in 1860, at the time of the birth of the complainant in the original bill, leaving him her only child and heir at law.
Price left with his family sufficient money to support them for about six months, and arranged with Noble to supply their wants when that was gone. Noble, at the time he got said books and papers from Mrs. Price, stated to her that when she was in need of money he would furnish it. This he neglected to do, and therefore when the money left by Price was gone, the family became very poor, and were without friends or others interested in them in Chicago. Mrs. Price accordingly supported her family by taking in sewing until sometime in the year-1850, and then all hopes of hearing from her husband having died out, she removed with her family to the State of New York where her father resided and where she had lived before coming to Chicago. Charles H. Fox was born in the State of New York, May 15,1860, and never knew or heard, until February, 1886, of said trust or property, or of the acts and doings of Noble under said agreement, and he alleges on information and belief that his mother had no knowledge of said trust or how or in what manner Noble became possessed of the property now in controversy. Henry W. Price also alleges that he did not know of his rights to said property or the circumstances under which Noble claimed to hold it, and that it is only since Noble’s death that he learned the facts in relation thereto and the witnesses by whom he could prove the allegations of his cross-bill.
The amended bill prays for an accounting, and that the rights, and interests of the complainant in said trust property be ascertained and settled, and the title to an undivided one-half of said real estate be decreed to him, and that a conveyance to him of such undivided one-half be ordered, and that said moneys in the hands of said administrators be declared to be affected by said trust, and that such sums as should be found due to the complainant be decreed to him, and a general prayer for relief. The complainant in the cross-bill prays the same relief in his own behalf.
The heirs of Noble, two of whom are also the administrators of his estate, by their answer, deny the equities of the amended bill.and cross-bill, and especially deny that any trust relation existed or was formed between Price and Noble, or that Noble became or was possessed of the property described in the bill, or of any property, as trustee for Price; but allege, in substance, that Price, at and before his departure for California, was largely in debt, and had various claims against him which he could not pay, and was practically bankrupt and without any estate or property whatever, and that Noble acquired or held the title to no property to the detriment of Price or his heirs at law, or otherwise than as his own, paid for with his own money gained by him by his own business, skill and application, and that he never improperly concealed any fact in relation thereto from any person whatsoever. The answers also charge the complainants with unreasonable delay and with laches in the assertion and prosecution of their claims.
Both bills and answers set forth a considerable variety of subordinate or evidentiary facts corroborative of the principal facts alleged, but wre are of the opinion that the foregoing is a sufficient statement of the issues presented by the pleadings and submitted to the court at the hearing.
The court, by its decree, found that. Price, in 1847, purchased the south thirty-five feet of said lot four of Joseph Berg, and paid him the purchase money therefor, and took a conveyance thereof in the name of said Noble; that he acquired title to said lot five by purchase at a sale by the Trustees of the Illinois and Michigan Canal in 1843, and paid the full price therefor, with the exception of about $300, and that in October, 1849, reposing trust and confidence in said Noble, he deposited the certificate of purchase of said lot with Noble, in trust for himself, at the same time furnishing the means with which to pay the residue of the purchase money; that prior to the date last mentioned, Price had erected on said lots a three-story brick planing-mill forty feet front and eighty feet deep, and was the owner of a large amount of machinery contained therein and used in the sash, door and planing business, and had been carrying on a large and profitable business on said premises; that in 1848, Noble, who was a brother-in-law of Price, came from the east and began to work for the firm of which Price was a member and afterward for Price alone, at day wages; that Noble was then poor and without means or property, but was not only a relative but an intimate friend of Price, and one in whom he reposed confidence.
The decree further finds that for about a year prior to October, 1849, Price had planned going to California, in part for his health, but was delayed by his business matters, and remained in Chicago attending to said planing business and arranging for leaving his business affairs with Noble, up to the date last mentioned; that at the time of his departure he was the owner of said property and business, and that he placed the same in the hands of Noble to be held by Noble in trust for him; that he left said business in Noble’s hands for the contemplated period of one year, agreeing to pay him if 1000 for the year’s services; that he entered into a contract with Noble in writing which stipulated and provided that said business and the title acquired by Noble should remain in Noble for about one year, in trust for Price, to be transferred to him on his return from California; that said written agreement provided that Noble should have charge of said business, except on the upper floor of the building where Price’s brother Norman was carrying on the sash and blind business as Price’s agent, it being provided that said Norman should have charge of the business and machinery on that floor, and that Noble should have the charge, custody and management of the residue of the property and business; that prior to his departure Price directed Noble to pay to Price’s wife a sufficient sum out of the profits of the business to support her and her children during his absence.
The decree further finds that Price left for California on the 25th day of October, 1849, and died within thirty days thereafter; that Noble having soon afterward learned of his death, conceived the scheme of defrauding Price’s widow and children out of said property and business; that he suppressed the news he had received and led Mrs. Price to believe that her husband was alive and had deserted her, making such representations for the purpose of intimidating her and preventing her asserting her rights to said property; that in furtherance of said scheme, he obtained from her title and other-papers relating to said property and business, upon the false representation that they were necessary for him to have in conducting said business, but in reality for the purpose of concealing them and suppressing all evidence of the rights of Mrs. Price and her children, and that he ever afterwards refused to return said papers; that for about one year after Price left, Noble, in compliance with Price’s directions in that behalf, supported Mrs. Price and her children out of the income of said business, but at the end of that period he refused to furnish her further support, and thereby reduced her and her children to such„poverty that they had to do hard work to support themselves in the cheapest possible manner; that Mrs. Price was a timid and sensitive woman, and that Noble threatened, if she made trouble, to expose the disgraceful character of her husband, showing that he had eloped with another woman and thereby disgrace her and her children, and that these false representations and the cruel manner in 'which he treated her disheartened and silenced her, and she being thus left poor and without means, her father and brother soon thereafter took her and her children to the State of New York where she continued to reside, without returning again to Chicago to live, until the year 1867, when she died; that Noble fraudulently obtained possession of the machinery left with Norman Price and converted it to his own use; that falsely representing that he was the owner of lot five, he obtained a certificate that he was entitled to a patent for said lot as assignee of Price, and thereupon received a patent to himself therefor; that the business thus left in Noble’s hands was very lucrative, and produced for him a large profit for several years ; that Price left him surviving as his heirs at law, his son Henry W. Price, the complainant in the cross-bill, who was then about ten years old, and his daughter, then about twelve years ■old; that about 1858 said daughter was married tó Joseph H. Fox, and died in childbirth about May 15, 1860, leaving her surviving Charles H. Fox, the complainant, her infant child and only heir at law.
The decree further finds that said Noble died about December 15, 1885, leaving the defendants his only heirs at law and the only persons interested in his estate, and that two of said ■defendants have been duly appointed and qualified as administrators of his estate; that at the time of his death he was in possession of said south'thirty-five feet of said lot four and of .said lot five, and that said lots at that time were unincumbered and unimproved, and that he was also in possession of a large amount of other real estate, and that he left personal estate of great value, which passed into the hands of his administrators; that at the time of his death he held said part of lot four and ■said lot five in trust for the heirs of said Price; that he at all times eoncealéd said trust from said heirs, and never disclosed the same or the facts or circumstances thereof, or in any manner accounted or offered to account to them concerning said business or property, or to re-eonvey to them said trust property ; that neither the widow nor any of the heirs of Price have ■ever resided in Chicago since said widow and infant children ■were taken to the State of New York as above stated and that they had no knowledge of said trust, and that the first knowledge thereof which came to the complainants was after the ■death of said Noble; that it was the duty of said Noble to diselose said trust to them and to account to them of and coneerning said'trust property, and to convey said trust property to them, and to fulfill his trust, but that he did not do so, but fraudulently concealed the same for the purpose of converting the same, and the profits thereof to his own use.
It was thereupon ordered and decreed that the complainant in the amended bill and the complainant in the cross-bill are each entitled to the undivided one-half of the south thirty-five feet of said lot four and said lot five, and to have the same conveyed to them by the heirs of Noble, clear of all incumbrances, the court reserving the right, by further and final order, to direct such conveyance and to make such further order in the premises as may be necessary to carry out said decree and vest said complainants with the legal title to said premises and to put them in possession thereof. It was further decreed that the complainants are entitled to an accounting of and concerning said trust property and business, and the profits thereof, if any, and the cause was referred to the master to take further testimony and make such accounting and report his findings with the testimony to the court; that in such accounting he find the profits of said planing business during the time Noble carried the same on, also the amount of rents received by him up to the time the planing-mill was burned down, and the insurance money, if any, received by Noble. The decree directs the master as to the principles upon which the accounting is to be taken and the scope of the same, with leave to apply to the court for further directions. It is further provided that if anything is found due the complainants, the master shall report the same to the court, and that upon the coming in of his report, a final decree shall be entered ordering the conveyance of said lots to the complainants, and directing the administrators of Noble to pay them the amount found due, in due course of administration. It is further ordered that the amended bill and cross-bill be dismissed for want of ■equity as to all the other property described therein, and as to the relief prayed in relation to the title thereto and the rents and profits thereof.
The only contention made by counsel for the appellants is, that the evidence does not sustain the decree, and the questions presented for our consideration are therefore mere questions •of fact. The evidence is very voluminous and in some degree conflicting, and we have given to it that patient and careful consideration which the importance as well as the difficulty of the questions presented have seemed to demand. The conelusions to which we have arrived are entirely in harmony with those reached by the learned chancellor who heard the case in the court below. To go into a complete discussion and analysis of the evidence in such way as to indicate our opinion as to the credibility of the several witnesses, and the proper probative force to be given to each of the various circumstances appearing in evidence, would serve no purpose of sufficient utility to justify us in extending this opinion to the length which our doing so would necessarily require. Such discussion would be of little or no service as a precedent in other eases, as each case, so far as concerns the credit due to the testimony of the witnesses and the effect to be given to the various facts to which they depose, must- manifestly depend upon its own circumstances. The only object of such discussion would be to apprise the parties to this suit of our views as to the mere questions of fact and of evidence presented by the record, and we are happily relieved from the duty of entering upon it even for that purpose, by the exhaustive and satisfactory opinion filed by the chancellor in the Circuit Court, in which we are disposed to concur. See statement preceding this opinion.
After carefully considering the entire record, aided as we have been by the able arguments of counsel, we are of the opinion that the trust alleged by the complainants, so far as the same is established by the decree, is, when all the circumstances of the case are considered, proved by evidence which is clear and convincing. The defense of laches is not sustained. The clear preponderance of the evidence shows that both complainants were in ignorance of the existence of said trust and of the fraud which had been practiced upon them by its concealment until after Noble’s death. Noble died December 15, 1885, and the original bill was filed June 29, 1886, and when we consider the period of over thirty-six years which had then elapsed since the creation of the trust and the manifest difficulty of investigating transactions so long past and of discovering and collecting the evidence by which they could be proved, it can not be doubted that the complainants acted with reasonable promptness after becoming aware of their rights.
The decree of the Circuit Court will be affirmed.
Decree affirmed.