194 Ill. 431 | Ill. | 1902
delivered the opinion of the court:
The Statute of Frauds, if invoked, operates to prevent the creation of an express trust in lands unless evidenced in writing. (Dicken v. McKinley, 163 Ill. 318; Dick v. Dick, 172 id. 578). The defense of the Statute of Frauds may be interposed by way of a demurrer to a bill in equity to enforce an express trust, if it does not affirmatively appear from the allegations of the bill that there is written proof of the creation of the trust. (Dicken v. McKinley, supra.) Counsel for appellant insist the bill disclosed facts from which the law will imply a resulting trust. A resulting trust does not arise out of the contract of the parties, but is an implication of law from the existence of facts necessary to justify the implication. It can not be created by contract, but exists, if at all, independent of any contract. (Williams v. Brown, 14 Ill. 200; Mayfield v. Forsyth, 164 id. 32.)
The allegations of the bill here under consideration are, in substance, first, that the absolute interest in fee did not pass by the deed to Bushrod W. Monson, but only the right to the grantee therein and his wife to receive the rents, issues and profits of the land for and during the period of their lives, respectively; second, that the grantee in the deed received the title for the purpose of keeping the same free “from financial trouble or difficulty” that might overtake the grantor, the appellant; third, that the grantee was to re-invest the grantor with the title, either by deed or will. These allegations can only be sustained by proof that it was agreed on the part of the grantee that his interest under the deed was such, only, as would entitle him to the possession and rents of the land, and that he had agreed that he would hold the title for the grantor and would re-invest the title in the grantor by the execution of a deed or will. The bill does not aver these alleged agreements were reduced to writing. Whatever rights or interest in this land remained in the grantor, the appellant, after the execution of this deed, if any, or whatever relation of trust existed between the grantor and the grantee, if any, depended wholly upon the force and effect of a verbal understanding or agreement between them. The trust, if any, was express, and was void under the Statute of Frauds, for the reason it was not evidenced by any manner of writing. (Biggins v. Biggins, 133 Ill. 211; Mayfield v. Forsyth, supra.)
The demurrer was properly sustained, and the decree dismissing the bill is affirmed.
Decree affirmed.
