114 Ill. 329 | Ill. | 1885
delivered the opinion of the Court:
The object of this bill is to declare and enforce a trust, and to that end to enjoin, etc. The substance of the principal allegation is this: Martin Powell, who has since deceased, in June, 1880, entered into a contract with Anna M. Dobbins for the purchase of a lot in the city of Peoria. The price to be paid was $900, of which $100 was to be paid down, and promissory notes of $100 each, hearing interest at the rate of six per cent per annum from date, were to be given for the payment of the remaining $800, and she was to give a title bond, obligating herself to make conveyance upon payment of these promissory notes. Martin was unable to raise the $100 with which to make the first payment, and his financial condition was very low. He entered into a contract with his father, Daniel Powell, whereby the latter agreed to advance the $100 payment, execute his individual notes for the deferred payments, and take the title bond to himself, and hold it for the benefit of Martin, and until Martin should repay him. Daniel advanced the $100, which Martin applied as a first payment on the property, gave his individual notes for the deferred payments, and took title bond to himself, as provided by the contract. Soon afterwards Martin repaid Daniel the $100, and entered into the exclusive possession of the property, and since that time he has paid the interest on the notes and all taxes and assessments upon the property. He has erected valuable improvements upon the property, a part of which he has occupied as a saloon. Martin died intestate, leaving the principal upon the notes •unpaid. The bill avers a readiness and willingness to pay the notes and accruing interest, and charges that Daniel Powell threatens to pay off the notes and take a deed to himself, in violation of his trust. The answer denies the trust, and charges that the purchase was by Daniel alone, Martin acting therein merely as his agent. On hearing, the circuit court found the facts in accordance with the allegations of the bill, and decreed allowing Daniel to make payment of the promissory notes and take title to himself, to be held in trust for the complainant until reimbursed the money advanced by him.
Some question arose during the trial as to the competency of'wdtnesses. It is quite clear that Jane Powell, widow of Martin Powell, was a competent witness. She was not called to testify in behalf of Martin Powell, but in behalf of herself, as his widow, and the other complainants, who are his children and heirs at law. Even at common .law, but for her. interest as dowress she would have been a competent witness in behalf of the children and heirs at law as to all matters coming to her knowledge through • sources other than communications of her husband. (1 Greenleaf on Evidence, sec. 338; Lockwood v. Mills et al. 39 Ill. 602.) The first section of chapter 51, of the Revised Statutes of 1874, page 488, removes the disability on' account of her interest, and so she was a competent witness as to all matters affecting the transaction of which she had personal knowledge. Deniston et al. v. Hoagland, 67 Ill. 265; Galbraith v. McLain et al. 84 id. 379; Mueller v. Rebhan, 94 id. 142. The cases cited by counsel for appellant, Pyle v. Oustatt, 92 Ill. 216, Westchester Fire Ins. Co. v. Foster, 90 id. 121, and Smith v. Long, 106 id. 485, are totally unlike the present case, and decide nothing inconsistent with this view of the law.
Daniel Powell is directly interested in the event of the suit, being the sole defendant, and the adverse parties sue as heirs at law of the deceased, Martin Powell, and he is hence incompetent to testify to anything but matters falling within the • exceptions to section 2, chapter 51, of the Revised .Statutes of 1874, supra. Under those, where witnesses on behalf of the complainant have testified to conversations, admissions or transactions of his, he is competent to testify in regard to the same'conversations, admissions or transactions. The case is not one wherein his wife, Bridget, is rendered a competent witness by the statute to testify in his behalf, and her evidence, therefore, can ntit'b'e considered. The probfs clearly show that she did not act as the agent of her husband in this transaction.
Considering the evidence that we deem competent, alone, it is impossible to say that we are satisfied the circuit court erred in rendering the decree. Anna M. Dobbins resided in Chicago when the trade was made, and she contracted through her agent, H. C. Bestor, of Peoria. There is not the slightest reason apparent for discrediting his testimony in any respect. He has no interest in the suit, and no apparent motive for caring as to the result. He is intelligent, and., has a clear recollection of the transaction. He shows that the purchase was by Martin Powell for himself, and that Daniel Powell was only a trustee. He is sustained by other witnesses, and by circumstances,—such as, the making of contracts by Martin in his own name, for the improvement of the property, and the working of Daniel Powell, in making the improvements, as a common laborer, for Martin, and his receiving wages as such. Jane Powell’s evidence is also direct, positive and full to the fact that the property was purchased by Martin for himself, and that Daniel took the title bond in trust; but we place less reliance on her evidence on account of her interest in the result of the suit.
There is much evidence directly contradictory of that on behalf of the complainant, some of which can be reconciled with it, and a considerable amount that can not be. Some witnesses who testify to declarations of Martin to the effect he admitted that the property belonged to Daniel, testify, doubtless, very candidly and very truthfully; and yet their evidence, when construed in the light of the surrounding circumstances, makes very little in favor of the defendant.
The motive for having the contract in the name of Daniel, and the bond executed to him, was to afford Daniel a certain and ample security for all advances to be made and all liabilities to be incurred by him. As between them, the ownership was to be in Daniel until he was reimbursed by Martin. -Legally the title was in Daniel; equitably it was in Martin,— and this they evidently well understood. It is quite apparent from the evidence, that when Martin was trying to obtain credit, and wished to magnify his ability to pay, he ignored his father’s legal rights, and assumed that his equity embraced every title and claim to the property; and when he was threatened with suits of creditors whom he wished to put off, he assumed that his father’s legal rights embraced everything of value in the title to the property. In neither contingency was his language wholly and unqualifiedly true. The contract, literally, was with Daniel, and Martin was not at all times as particular as entire truth required to disclose the trust in his favor.
We are not inclined to give much weight to some of the testimony of the brothers of Martin. They testify, quite evidently, under deep feelings of prejudice. It wall subserve no useful end to recapitulate and comment upon the evidence of each witness. We are content that after having carefully and dispassionately considered all the evidence, we are unable to say that the decree below is clearly wrong.
The bill is not one to redeem, but one to declare and enforce a trust, and there was, therefore, no necessity to allege or prove a tender. The defendant having denied his trust, imposed upon complainants the necessity of filing the bill, and he might, therefore, very properly have been taxed with all the costs. His complaint that he was taxed with part of the costs, is not reasonable.
No sufficient cause is perceived for disturbing the decree below. It is therefore affirmed.
Decree affirmed.
