| Ill. | Sep 15, 1870
delivered the opinion of the Court:
In 1813, John Roberts, the father of these parties, being-seized of a house and lot situate in Berks county, Penn., died,- leaving Margaret Roberts, his widow, and Daniel and Margaret, these parties, his only children, him surviving. By his will he devised this property to his widow during life, remainder in fee to his two children in equal shares. In January, 1837, the widow and these two children joining in the deed, the property was sold for $700. Margaret, the daughter, was then unmarried, but did not relinquish her interest in the proceeds. The family all moved to Ohio, where a purchase was made of another homestead, being a house and six acres of land, for the price of $1,100, upon which the amount realized from the sale of the other property was paid, and to pay the balance and for other purposes, the sum of $450 was borrowed, and secured by mortgage on the place. With the consent of appellant and appellee, the title was taken in the mother’s name. In 1840, appellee was married to Opp, and left home a short distance. In 1842, the Ohio property was sold for the same price given for it, the purchaser assuming the mortgage of $450, and paying the balance. Soon after, the lands in question in this suit were purchased for the sum of $650, and all parties moved into this State, Daniel and his mother living together upon one parcel of it, and Margaret and her husband living elsewhere. It appears that at the time of the sale of the Ohio property, there was much depreciated paper money in use, and the principal part of the amount received from the sale, was in such money; so that the widow had only about half of the amount of the consideration of the last purchase, which she paid from the proceeds of the Ohio property. The balance was paid by appellant. But with the consent of the parties, the title was taken in the mother’s name. In April, 1864, when the mother had attained the age of about 83 years, and having the infirmities usually attendant upon so great age, and being, and having for a long time been, very much subject to the influence of appellant, the latter obtained from her a deed of the west of the north-west J of section 21, the deed expressing the consideration of $2,000, no part of which was paid, but really upon the consideration of an agreement entered into to support and maintain her. In October, 1866, the mother, with the advice and co-operation of appellant, sold and conveyed the south-east \ of the north-west ¿ of section 3 to one Henry Zappa, for $900, taking his notes for the amount, secured by mortgage on the land, which notes appellant held in his possession at the time of filing this bill.
It is unnecessary, in the view we take of the case, to decide the question of undue influence and fraud, because it is clear that appellant was cognizant of all the facts, and knew that appellee’s portion of the property left by her father went, without any relinquishment of her right to it, and by the consent of all parties, into the Ohio purchase, and in the same way into the Illinois purchase, and that the fair understanding was, that the interest of the respective parties should be substantially as it was in the property left by their father. This being so, there was a resulting trust in favor of appellant and appellee, and the deed from the mother to appellant, with knowledge of the trust, would not affect appellee’s interest. As there is no evidence of notice of the trust to Zappa, he would take the land divested of the trust, but which will attach to the notes given for the purchase money. As appellant paid one-half the purchase money of the Hlinois lands, he was for that reason entitled, in equity, to one-half, and as his funds, together with appellee’s, paid for the other half, he is equally interested with her in that half. Appellant is, therefore, entitled to three-fourths of the land deeded by his mother to him, and the same proportion of the Zappa notes, and appellee to one-fourth of the said land and of the notes.
As the decree of the court below is not in conformity with these conclusions, it must be reversed, and the cause remanded, with directions to the court below to declare the interests of the parties, and make division of the property in dispute according to this opinion.
Decree reversed.