*1 (Nо. 18476. Mary et al. vs. A. Appellants, McMullen, et
Exrx., al. Appellees. Opinion April February Rehearing denied filed 192 9 1929. *2 George George F. and Sankstone, Ort, E. Edward for H. Martin, S. appellants. H.
Thomas Young, Holly, ap William J. pellees.
Mr. this reported opinion: Commissioner Partlow Appellants, Neagle, Mary Manning Agnes Carroll, who are sisters, filed their bill in the circuit court of Cook their county against sister-in-law, Elizabeth Neagle, to establish a constructive trust in certain real estate at the corner of ITalsted and Polk streets, city Chi- issue joined cause was refеrred
cago. Upon being master take the evidence his conclusions. report After she had testified, but before the final determination of the case, died, appellees Mary A. and as executrix of the will of McMullen, personally Elizabeth, and Alice Atkinson, A. and Wil- Agnes Ducey liam T. McMullen, were substituted as defendants. $20,^00 master found that for the property, which was valued that she no, actual notice $2^.000: notice trust but that she had constructive alleged thereof Frank P. that she attorney, Reynolds; through аn title vested with indefeasible equitably eighty-two cent cent of other eighteen per property, per trust in favor impressd Excep- appellants. sustained, to the a decree was entered tions report the bill want of and an has equity, appeal dismissing court. been prosecuted *3 a trust determination are: Was (1) The questions in un question F. Neagle created in John dated father, him his Francis C. Neagle, to from der deed said by a trust was created such If 6, March (2) 1895? ac did Neagle exist and did it cоntinue to deed, to and with notice of subject title to quire laches of such Were guilty its existence? (3) appellants bill? under their recovery as barred a testate died that Francis Neagle shows C. The evidence as heirs- only his 20, 1895, leaving on July in county Cook who three Neagle, daughters, widow, at-law his Johanna Frank H. sons, F. and and two the three are appellants, John in leav- 1899, intestate died and Frank The widow Neagle. heirs-at-law. Prior only as their ing appellants John the real the owner of Francis C. dеath to his on separate two mortgages to subject in estate question On other $6000. one for thereof, $9000 parts he devised will, in which made a 1895, February 9, He in controversy. real estate in fee a piece John real estate in trustee, as question devised John twenty-one hold for after his when it was to years death, become The trustee was to col- appellants. lect the rents, and use the income pay such expenses part as for the might necessary widow, support apрel- lants and Frank. On same will was executed day the testator executed a deed conveying quit-claim the real estate devised to him in fee the will. On March 6, the testator the real estate in conveyed question without reservations or conditions in the deed. This deed is the basis of claim in this case. appellants’
The testator and sons his had been in engaged general under the firm name contracting Chicago of F. C. Neagle & On March 8, Son in- Company. business was all of the stock corporated, owned the father being his sons. The evidence shows that the firm and corporation were involved and several financially suits were pending them. After the death of the testator the will was filed for The probate. showed inventory of per- $537.75 sonal estate and no real estate. Claims were allowed amounting $5293.91, which were not On March paid. 6, 1896, conveyed real estate in to the question for a stated corporation consideration of $20,000, together with the real estate which he in fee on Febru- acquired ary 9, 1895, father, his the consideration stated being Foreclosure suits were filed the two mort- $5000. was made a gages. defendant in each and was repre- sented by Frank P. Reynolds, solicitor. Appellants not defendants and did not in the cases. appear There was a sale under the to the mortgage complainants $10,000, case for with a deficiency $498.60. *4 certificate was and he assigned Reynolds secured a deed on Under the 25, April $6o_qo there was mortgage 1901. a salе to in that case for complainants with a de- $7400, ficiency of A master’s deed was issued to the com- $301.50. on March 23, and there plainants 1901, was a subsequent of this 20, on conveyance property Reynolds April 1901, for a stated consideration of had been at- Reynolds $6500. for a number of ITe for the torney Neagle family years. to her mar- just had prior Elizabeth represented the widow of riage Eugene Keogh, John. who on February died 1888. married May 23, She owner of one-sixth of an estate val- 12, was the She 1901. her ued at inherited from father. which she $500,000 She testified that introduced to by Reynolds. She her she went to the office few before days marriage to- their offices John, being Reynolds by appointment in the bank her had some money told she Reynolds gether. in- for her good which he could invest of Polk and Halsted streets. the corner vestment at Later de- said it was a investment. in and She good came testified property. she would She cided purchase and on wed- she was married, a few afterwards days she train, bеfore shortly taking day, depot, ding or Reynolds. either to $10,000 a check for delivered drawn, it was what bank not recall could the Merchants Bank or & was either on the Graham Sons for further consideration As Trust Company. Loan to Reynolds conveyed 1901, 9, on April purchase, tes- which she in Chicago, street, lot on Green a house and she received February 1901, 7, worth On tified was $3500. her at- court through of the circuit the clerk $9426 just order entered a court virtue of Reynolds, torney, assign- in consideration Reynolds, thereto. prior the deed to the making the certificate ment of the Green conveyed cash and him, part two he executed Afterwards street property $4500. Merchants to the in question deeds trust December On totaling Company, and Trust $7000. Loan for a real estate to he conveyed trust subject of $25,000, consideration stated to pay. and agreed assumed which she deeds,
173 after immediately There is evidence tó show that tending the of F. and marriage Keogh John the and his sister one of the assumed man- Julia, appellants, control of all real estate and of agement Elizabeth’s her bank account. collected business affairs, including Julia a the from the Halsted street rents part only prop- the to but from all of erty belonging property the leases and at checks, notes, mortgages signed on her dictation of her husband. mortgages prop- put to never received the From and she erty proceeds. rental from rpii per average property $590 her and sis- out of which claims month, John ter about a month. From to Agnes $65 1918 Julia a collected rents to month. She ranging $590 $250 claims she retained for her sister herself from $75 a month and at the direction of deposited wife lived balance in the name of and his Elizabeth. John until when where they in moved 1911, Florida, Chicago lived until the death of on John, April 5, 1922. who Sankstone, notary acknowledged public J. J. of March from Francis C. deed warranty for the testified controversy, F. Neagle property ill in home on Park avenue, that Francis was bed his said: at the time the deed was executed; Chicago, I I Mr. had deed “Father, have brought pre- Sankstone. and Polk street at your sug- Halsted pared the title in to avoid this gestion probating property put— it for the Mrs. you requested.” me. I will hold girls, “That would be good suggestion.” Neagle said, Johanna course have had a you “Now, John, good said: Francis taken care of you and I have pretty my support deal of should children. my I intend go Now well. Mother will have the three girls Frank.] [Mentioning the deed to father handed The here.” the home of it.” lived family take care will know you “I said, on Park was built avenue. until a home premises lived on Park until avenue the death They testator. When foreclosure proceedings instituted Park avenue the family moved elsewhere.
In corroboration of testimony evi- Sankstone, dence was offered of conversations between Francis and in which the some time after John, father, the date have deed, is stated that he had alleged so that arranged wife children would be taken care of out *6 street and Halsted that income property, replied John from that be and he would would take property enough care of them.' Daniel testified that talked S. Ellsworth about with times of twelve many during period John him income from the always and told years, prop- John not was his sisters and did care to sell erty he admitted that cross-examination property. Upon John him to that sisters were owners understand his gave and street, of on Harrison never certain property John that wife owned the Oak Park the witness his property told him that owned it. but to understand always gave John Another belonged These last two properties out of rent testified that he which witness Julia it when he told about said collected, he had and John John it to them all testified anyway. that was went right; Julia leases her made out some that in delivered 1911 John them; she him about and asked in the name of Elizabeth the matter never took she suspicions that it aroused her sister Mrs. Manning that Elizabeth; with up 1914 rents told of the and her share demanded Julia then that understood in their names, Julia her and her sisters. Evidence to be conveyed ought between and appellants, to conversations offered as reference was made Elizabeth, which of in the presence therefrom in such income to the property by John that appellants notice as to Elizabeth give a manner in the income there- or interest an claiming when any that she was present denied from.
175 not know she did took claims place. conversatiоn such trust before purchased about agreement anything the rents did not know that any part it had been paid was retained or that any part controversy After the death of Julia. three and about title, arose between the parties months after death suit was instituted. title im took is that contention appellants took title with the trust and
pressed constructive, actual or trust, either knowledge is to estab it is her. Where it sought binding upon lish must a constructive trust evidence by parol proof and unmis clear, sо convincing, strong, unequivocal takable as to one cases Many lead to but conclusion. hold that the must a reasonable doubt. beyond be clear proof If the evidence doubtful or is ex capable reasonable other than the existence of a trust planation theories it is not sufficient. v. Ill. (Niland Kennedy, 253; 316 Winkelman, v. Winkelman Conroy Conroy, id. v. 127; 313 Ryder id. 249; Baughman, v. id. Baughman 55; v. Ryder, To a constructive trust id. establish 297.) there or must be either con fraud, some element *7 positive which existed the time of the or structive, transaction, at there be influence, must a confidential relation and undue virtue title to of which one obtained the legal has prop rules erty which not have secured under the of ought Gamble, and v. Ill. conscience. equity good (Streeter 298 grantee’s mere breach oral does 332.) of the promise out' not constitute such fraud takes the casé Stat ute Mc of Frauds. Ill. Delfosse, 251; v. (Delfosse 287 relation ex v. id. A Henry McHenry, 506.) fiduciary 248 ists in one who where there is a confidence speсial reposed is to act in faith equity conscience bound good good and with interests the one due to the regard reposing It on the confidence. exists where confidence is one reposed side influence are found on resulting superiority
176 side. the other v. (Niland Kennedy, v. supra; Campbell Freeman, Ill. 536; Feeney Runyan, v. id. 246.) 296 316 if a relation unless of that fiduciary exists, Even means relation undue taken of the con advantage grantor veyance will Ill. Bruns, not affected. v. (Pillsbury 301 578; Roche, Peddicord, Roсhe id. v. 286 v. 336; Kellogg id. A if full deed is valid it is executed with 22.) of its nature and effect the delib knowledge and through erate and voluntary desire v. grantor. (Pillsbury Bruns, Where a relation bur supra.) fiduciary exists, den is on the show the trans fairness of the beneficiary action and did not from undue influence. proceed McGill, (Allen Schneider, v. Ill. v. 170; Rutherford id. A relation arise 28.) fiduciary necessarily does out of the relation Niland child. v. parent Kennedy, supra.
The evidence establishes the conclusively following facts: On March when the deed tо was exe- cuted, there were two on the mortgages property, totaling $16,000. In the was foreclosure one decree proceedings for $10,498.60 and the other was for $7701.50, making total $18,200.10. $10,000 cash, as- sumed two trust deeds $7000, conveyed amounting Green street valued was subse- $3500, (which total of quently conveyed or $4500,) making $20,500 which was all the was worth. $21,500, substantially John, When Francis Francis was in financial conveyed All estate was difficulty. real mortgaged under He owed subsequently lost proceedings. foreclosure debts which he some of which later pay, unable reduced to suits were judgment. pending against Several him. had no and judgments property, apparently several thousand dollars were later rendered aggregating him. The of the estate of showed Francis inventory no real estate and estate. only Claims personal $537.75 *8 none of which were allowed, amounting $5293.91 all these facts it is From apparent undisputed paid. if all of had been Francis was a his debts bankrupt, he have been would have left no which сould estate held in for his wife children. trust trust Any agree- ment that have been fore- by made may destroyed closure were con- as far as proceeding, mortgagees cerned. It of the only by reason by purchase out of her own funds that did not into this property pass the hands of strangers. lived with had his father all of his life to. prior
his re- Their business and family marriage lations had been close and intimate. been They always had on terms and each had confidence in the other. friendly Whether a existed them fiduciary relation between whether abused that relation to secure this deed de- pends the facts in It evidence. is upon undisputed father was sound and was not mentally influenced. easily testified that “father very individuality strong mind; he set mind to strength do anything did.” If the deed was the free and act of the voluntary father no constructive trust was created. The principal evidence on which the trust was based was the testimony He Sankstone. used testified to language father over twenty-seven earlier. It difficult to is yеars understand how witness could the sub- remember even stance of the conversation after so many ab- years sence of anything his mind. if impress Even full faith and credit is to his there is con- given evidence, siderable doubt, whether used, as to language deed was made whether it or suggestion was made at the father. suggestion meaning of the statement made the father at the time the deed was executed on it was made, the manner which depends and when it is reduced to its writing meaning depends the manner which thе If the statement punctuated. statement father the means that at the suggestion *9 the estate, so as to avoid administering
deed was prepared that sustain the contention such a construction would not that he influenced his father was moving spirit John to make the If the means that was deed. statement and had the deed and secured moving prepared spirit merit in it there be some to acknowledge might Sankstone The testified to contention of language appellants. of a trust not indicate the creation does cleаrly Sankstone agreement. to be given
Other evidence casts doubt on weight He asked on cross-exami- the evidence of was Sankstone. which he had nation to certain other instruments pre- as deed father, including pared acknowledged to He not clear as was so to on February 9, 1895. them vividly not remember as transactions and could these he a He testified that was he the one in did question. had to the bar and practiced and had been admitted lawyer was offered showing in years. Chicago many Evidence been admitted to and had not that he was not a lawyer He had for many years. he law had bar, yet practiced sev- in court on in this case and had appeared been active His son was motions. and had argued eral occasions He had consulted with his son. he had offices lawyer their His them as to rights. and advised with appellants it on a con- the case had in other lawyers engaged son and in its success. interested fee, apparently tingent disinterested tоtally he was not a that evidence shows This in determining considered fact should be and this witness, evidence. to his to be the weight given that for many years recognized insist Appellants monthly payments trust by making of this the existence with reference evidence The sisters. principal two of his one of from Julia, appellants. these payments them reference to but she with evidence some other There is her examined evi- We have detail. went into greatest doubts as to and have serious carе with considerable dence to it. was associated given She weight other of this and years twenty-five handling for over There no question belonging property testified collections. that received from money this the rents from money property, was part money on this but there is considerable doubt point. have come the rents may question and it of other may belong- have come from rents her know that testified did not ing Elizabeth. She father she did John; deeded know of the court under proceedings рrobate *10 will, father’s or of the foreclosure or of proceedings, deed to All of these were matter Elizabeth. proceedings were public record, and deeds filed record at time were executed. her testified that father told She her on his death-bed that he had made a will over turning for their that ex- benefit; was named as ecutor and would manage Her father did not everything. tell her oral declaration trust which was supposed to have been made after the execution of the will. tes- She tified that knew and she appointed executor, left the matter of the to him. From probate this evidence it is that she did apparent know probate proceedings her evidence to the notwithstanding contrary. In January, 1898, a was served subpoena with refer- Agnes Neagle ence claim to a filed court her probate father’s estate. testified that in gave her some Julia 1911 John made leases out in the name of she asked him about them; that this aroused her her that susрicion rights being infringed she never upon, took matter up In Mrs. de- Manning manded share of the benefits and told the prop- Julia was not in erty their names, but was not until after death of John, when his widow began assert her rights saw her support that she slipping away, took any Julia action. then She consulted who Sankstone, looked up
records, advised her that the property belonged to appel- lants, and this suit was instituted. If the testimony and Sankstone is removed from this case there is little very evidence left on which а decree a trust can establishing based. When their is testimony considered as a whole it is not of that clear and character convincing un- necessary, der the authorities cited, to establish a constructive trust, nor is all of the evidence sufficient to establish such a trust. if
Even the evidence were sufficient to establish a con- structive trust, before would be entitled to a de- appellants cree it was incumbent them Elizabeth, that prove before she had notice of purchased, either actual trust, or constructive. The master that found she had no actual notice, is sustained the evidence. finding amply The master found that she had constructive notice through her attorney, which Reynolds, was not sustained finding the chancellor. did not seek to acquire Her attention was called to it property. by Reynolds prior to her There is no evidence that she had marriage John." any as to condition of title knowledge prior time she There no substantial evidence purchased. she knew much about the title after she very purchased. the title of was not a to a fraud to defeat ap- party She faith full apparently purchased good pellants. certificate under for one Reynolds $11,280.08 value. *11 the street the in cash and Green prop- foreclosure $14,280.08 a total of certificate. He for the other paid erty the the holders Green street cash and deeded property the the He on certificates. put mortgage property her he recеived from he sold it to When Elizabeth $7000. the or a mortgage, in cash and $10,000 received-$7000 cash to $14,280.08 He only cash. total of $17,000 he the title. Where whom acquired the parties does not show. went the evidence difference $2719.92 If either or or Reynolds. either to It must have gone She, out of it. cheated it they of them Elizabeth both got 181 notice with constructive however, charged by appellants cheated of whom her one or both trust through agents, of a is not notice her Notice to an agent deаl. au agent the facts in the where possession principal the information that he will conceal the inference thorize & Bank Nichols Nat. v. from his (Merchant’s principal. Booker, id. 529; Booker 208 Ill. v. 41; Co. Shepard 223 If id. 414.) Eliza Presbyterian Hospital, Seaverns v. 173 trust, of the -the existence alleged beth had knowledge have would not constructive, she either actual or probably a trust and If there was such purchased property. full her buy pay wanted Reynolds to avoid if wanted buy value for or it, about tо tell to their interest it was not trust, of the trust and no knowledge If trust. enforced the trust cannot be value, full paying purchased, notice establishes do not think the evidence her. We to Elizabeth. stale claims. v. does not encourage (Moore
Equity This rule is Ill. Taylor, 468.) peculiarly applicable entire arises justice through where the difficulty doing in the transaction the death of the participants principal transaction hav or reason of, original complained time as to render ascertain so obscure by become ing difficult. extremely (Car the facts or ment of impossible rule is Ill. While general lock Carlock, 330.) v. in the assertion of an with laches charge party he have had knowl should it is essential alleged right if the claim, yet which based of the facts edge upon him to have inquiry, circumstances are such as put upon the truth were avail readily of ascertaining and the means make it, neglected inquiry party able such the same as if he had with laches be chargeable he will Smith, Elizаbeth, Ill. ter v. 57.) the facts. (A known the date her after tenants, possession through with the all connected intimately deed. Julia *12 the time knew was handled. As way that early of knew that leases were made name as being In Mrs. called her of attention Manning that was not of fact in the names appel- It is either had lants. notice as apparent appellants to the condition the title or by any of exercise of de- true could have ascertained the gree diligence they facts. took nо their to assert and waited for They steps rights over after deed was executed to twenty-seven years time before took action. any During two witnesses most about the transaction had who knew other not be destroyed died and evidence was or could lo- cated. are We guilty opinion appellants of such laches even as barred recovery though they their case as the existence of the trust no- proved tice Elizabeth.
It is insisted that the chancellor, sus- by by appellants all of the taining appellees report exceptions struck certain evidence which master, out important consider. This is not the reasonable construction did not The chancellor sustained the to be the ruling. placed upon but did so on master’s appellees report exceptions all of a consideration of the whole record and from evidence. evidence was insisted that considerable
It is incompetent under the decree are apрellants introduced by appellees, It that some in- costs. bemay with unnecessary charged but it was not confined was admitted evidence competent not as much evi- and there was side, incompetent one admitted as is claimed appellants. dence will error, the decree no reversible findWe affirmed. Mr. opinion : foregoing reported
Per Curiam is hereby opinion Partlow adopted Commissioner entered in accordance therewith. court, judgment Decree affirmed.