*1 ad- agreement such an can justice only extent that ministered its decreeing specific performance. decree of the circuit court LaSalle versed and the cause is court, remanded to that direc- the bill tions dismiss want equity. remanded,
Reversed and with directions. (No. 18608. Error, et al. vs.
George Bertha et al. Plaintiffs in Error. Ingleman Opinion April 20, Rehearing denied June *2 Mar- and H. G. E. Morris, (George Parmer, & Green in error. Barth, counsel,) plaintiffs and Oris tin, in for defendants Lynch, R. S. Rowrand, John error. this opinion:
Mr. reported Partrow Commissioner and Daniel Adam Neg- in error, George, filed Negley, and Margaretha are sons of who ley, John Richland against in circuit court their bill great- in who are grandchildren plaintiffs er- an wife, to grandchildren correct. John of land in a deed to defendants the description error i, by executed on November John de- wife. An to the bill denying answer A entitled to the relief fendants error were prayed. alleged cross-bill was in which filed, x, time, and since November their error sustained relation parents; their par- while secured sustaining such ents to all of lands owned by parents; deeds aat fraud undue influence the deeds were secured time when not have mental capacity did in addition to the deeds defend- deeds; to execute all of affairs ants in error secured control of business of their came into of all and finally possession both real to the exclusion estate,' and personal, *3 been administra- all of the other that there has no heirs; tion the of either and that estate parent, in error claim the died without estate. parents aside; that the deeds be set that there cross-bill prayed the had of all of the which lands partition lands, that an be taken of the owned; profits accounting and the estate be marshaled estate, and entire personal in with what- and the share of defendants error be charged out the to the exclusion ever had received estate they heirs. the evidence was the other issue Upon being joined in chancellor, the a decree heard was entered prayed bill, for want cross-bill was dismissed original from this a writ of error has been and equity, prosecuted court to review decree. in died intestate on July
John his wife died on and 6, February intestate 1913, 27, 1909, on estate. had there wras no administration either who are defendants in and two sons, daugh three and In 1882 married ters, Josephine. Joseph Sarah Sarah
55 three leaving on died October She Morgan. in error are are married and who daughters, Hemrich. married She In case. Josephine this John 1883 one daugh are all of whom children, living except nine died five children. Josephine died leaving who ter, left the home of married After the two daughters evi far distant. on farms not and lived their parents the fall that in is, of defendants dence on behalf money borrowed purchased of 1884 John to his daughter Joseph He acres of land. deeded acres her with husband, agreement acres to ine and 40 $600; her husband Sarah pay Josephine farm livestock, imple each certain father daughter gave of about the value furniture, ments and household of about to each daughter $1000. total making gift the defendants Hemrich that each of testimony of their father for several from the home error was away worked on times and daughters at different the father that he acres from He testified bought farm. Sarah, of this amount was paid $1200; $600 all the prop acres to this, Josephine, fur certain household received, except erty daughters some other niture, cow, sheep, possibly couple articles. shows on behalf of defendants
The evidence acres of owned 220 and his wife worth counties, and Clay $20 land in Richland wanted to father owed acre, $3600; per of his farm land and the active management retire from contract was en- sons; his that a verbal turned it over to in error assumed active whereby tered into *4 they the farms. From paid of profits management other the father owed and they which purchased father owned 680 acres November 1, 1894, land. On counties, and on and his day in the two land in error three deeds. The executed to defendants wife it $2000, conveyed first deed recited a consideration of March acres of land in Richland and was recorded county, it $1500, a consideration of second recited 23, 1901. and was county, 80 acres land conveyed Clay corded recited a considera- December The third 22, 1894. county, tion of land in Clay acres of conveyed 240 and was deed con- 22, recorded December Each use tained a reservation that the were to have the grantors and control land as as lived. they long in error claim that after their father 1, November 1894, them there- turned over to all of his estate, personal the farms, stock, and sold bought bought after operated borrowed and loaned taxes on land, money, paid for over After the death of their father forty land years. mother continued undisputed land with no adverse claim of possession right title from In discovered anyone. deed out, of November first above set 1, described acres of land in section being it was in section to the whereas and as remainder of the land that deed the omitted the number description in which the land was located. Immedi- township of the errors defendants in error ately upon discovery the bill in this case. As for reversal it is that defendants in grounds urged occupied parents; the deeds were obtained fraud and undue influence at a time when the father was mentally incapable executing deeds; that the deeds were without consideration; will not reform a deed of equity voluntary settlement; the deeds should be set and that aside, error should be to account required for all of the property of which died seized.
The term relation” “fiduciary is broad one. It exists in all cases in which influence has been acquired and abused has been and confidence reposed betrayed. The origin
57 are im the influence the confidence and the source of re The rule technical fiduciary material. embraces both exist wherever and those informal relations which lations. Wilton, one trusts and relies another. v. (Beach Ill. id. 413; Mayrand Mayrand, 45.) v. Even 244 194 a deed is nevertheless fiduciary' exists, though if it valid is executed with full of its nature knowledge effect and the deliberate and desire of voluntary through Bruns, v. v. grantor. Ill. Valbert (Pillsbury 578; 301 Valbert, 282 id. The existence of rela 415.) fiduciary tion does not render a unless reason void conveyance by of the relation undue is taken of the advantage grantor. v. Ill. (Lang Lang, Where deed is vol 148.) 284 act full untary of its na grantor, knowledge ture and and is in effect, accordance with the de grantor’s sire and the existence aof relation does purpose, fiduciary not render the McGill, void. Ill. conveyance (Allen 170; Winkelman Winkelman, Roche v. Roche, 286 id. intimate relationship persons does not or forbid the to deal or prevent right engage in contractual All relations. cases where contracts have been nullified are based relation where upon fiduciary undue fraud, influence or circumvention entered into the transaction. mere fact that a child lives with its par ents in accordance with their desire and does not, plan alone and of create itself, fiction that will defeat legal their solemn contracts which have been executed for a long time and are to nor will perfectly satisfactory parties, their deeds that nullify have been in force for many without concealment years and fraud.
In this case there is no evidence of rela- any tion From defendants in er- the lands to their operated This belonging parents. virtue of a verbal contract with the father, who on account of his advanced did not care to age assume the burden of such The farms were operation. operated were
ten with the understanding apparent as a error part become property their share of the estate of the parents. was their their what considered
given daughters left home and were share of estate. After daughters with their own affairs, concerned their bene- the farms and them for own mained on operated fit There is no evi- and for the benefit of parents. *6 that in these overreached dence dealings made or was deeds, these arrangement securing error. wit- even at the of defendants Several suggestion them he had done testified that the father told what nesses suffi- The evidence was not and his reasons for so doing. that a fiduciary cient to set aside the deeds on the ground relation was abused. mental of
The basis of alleged incompetency in the that he raised to execute these deeds is was Negley that he renounced the Catholic church; Roman Catholic that he was sus- order; Masonic joined religion of but after- from the order for dues non-payment pended his wards on one occasion attended of meeting lodge, disbe- that he his belief and became a changed religious in the testified for liever One witness Deity. plaintiffs unbalanced in his but was religion, witness did not know whether was of capable making Another witness testified that was wrong deed. something mind, with his and he was of ordinary incapable transacting money. or business, deeds, mortgages making borrowing testified on behalf of defendants in error Five witnesses and the friends, who were neighbors, family physician. testified of average mentality one of his and was sound in mind. One age perfectly testified that her was grandmother her boss of did what family grandfather exactly If there it told him to do. was influence any she undue came from the rather than from grandmother apparently in error. The does not sustain evidence contention of making was mentally incapable these deeds.
In the in er bill it is alleged original It for is in the land Richland county. paid $2000 there sisted that while the deed recited a payment $2000 was no evidence that sum and that there was paid; was no evidence which was competent $3600 claimed father at the owed time deeds were exe cuted was defendants in error out their own paid funds. Under certain circumstances evidence be re may ceived to a consideration recited in explain qualify is not admissi deed, but the rule is that evidence general ble to for the consideration stated impeach purpose Lehmann, 227; the deed. Ill. destroying (Hagen Reheis, Robbins, Russell v. 132; id. Fleming Cass, Redmond v. There was evi id. that a the father dence to show debt of tending a consideration the deed recited paid, father and mother error took care of their defendants in showed consideration until their The evidence death.
the deeds. of vol will reform a deed
It is not equity insisted decree rule will not equity settlement. The is that untary on a contract unless it is based execution of specific Dick consideration. v. (Strayer some fair and valuable erson, It will not aid a mere volunteer to Ill. 257.) but a conveyance, effect an gift into carry imperfect meritorious based conveyance trust or voluntary (McCartney be enforced in equity. may consideration Williams, Preston 160 Ill. Ridgway, this ten years case had its inception The consideration those executed, during were the deeds before in fulfillment of carried out was being consideration inter directly and desire parties understanding in not voluntary conveyances were The deeds ested. generally sense in which that word is used. accepted were for a had consideration, jurisdiction and equity reform the errors in the of the land. description
It is insisted that there is no evidence as to the exact terms of the contract conveyed under which this land was to show the in con- nothing land description evidence shows that at time these deeds troversy. were executed owned 680 acres of land and that he wanted to all of it to his He owned convey sons. certain land in section but did not own land in section omitted was township of the other land. There can no description as to the intention to the question land grantor which he intended to It was all the land which convey. he owned in both counties. The told numerous grantor after the witnesses execution of deeds and to his death that this land to his and other conveyed sons, conditions of contract were stated him. is made that defendants in error were not
Complaint witnesses and were competent permitted testify. They were testify transactions to the competent subsequent death of their of their most evidence was lim- parents, ited to that before chancel- period. hearing and there was sufficient lor, evidence to sustain competent the decree even some though evidence incompetent may have been admitted. find
We no reversible decree will be affirmed.
Per Curiam : The Mr. foregoing opinion reported by Partlow Commissioner as the hereby adopted opinion the court, therewith. is entered accordance judgment
Decree affirmed.