104 Ill. 470 | Ill. | 1882
delivered the opinion of the Court:
This was a bill in chancery, filed by' appellees, against appeHants, to have a resulting trust declared in their favor,. for seventy-four acres of land. It appears that Jacob Emrich became the guardian of appellees, in August, 1865. They were his daughters by a former wife, and he received of their' money, as such guardian, $882.30; that he purchased the land in controversy on the 23d of January, 1867, and it is claimed he paid for it with their money, which he held as their guardian, and received a deed for the same in his own name. Emrich died after having made and published his will, by which he devised this land to his widow for life, remainder to his son Jacob in fee, but charging it with the payment of some legacies. The will was probated, but appellees renounce all benefit under its provisions. They pray that the trust be declared in their favor, and the title vested in them. On a hearing the court granted the relief asked, and defendants appeal to this court.
In defence, it is denied that the land was paid for with appellees’ money,—that if their money was paid for any land it was for another tract, and if it was paid for the land in dispute, the claim is stale, and is barred by the five years’ Limitation law; that Emrich settled with and paid to appellees all money he held as their guardian.
We regard the evidence -as entirely sufficient to clearly establish the fact that appellees’ money was paid for this land. Emrich, on repeated occasions, and to different persons (to as many as four), deliberately and distinctly admitted or stated that the money of appellees went into this land. Nor is there any evidence in the case that overcomes or even breaks its force. It is, however, claimed, that owing to the length of time since the admissions were made,—owing to the imperfection of human memory,—it is not reliable. We are aware of no rule "that mere lapse of time requires the evidence to be rejected, or limits the credibility of evidence, ' unless there be reasons impairing its force. It is true that the conversations detailed by the witnesses occurred ten or twelve years before they testified, but it is by no means remarkable that witnesses should remember occurrences for such a period. On the contrary, it would be rather remarkable that such a conversation should not be remembered by them. The very fact that the neighbors knew the father had the money of his daughters, would be a matter of discussion and curiosity to leam what disposition he had made of it, and in which all' would make it a matter of concern, and on learning the fact, they would not be likely to forget it. The proclivity of many persons to interest themselves in the affairs of their neighbors is so strong that it would be almost incredible if they did not learn and remember such an occurrence.
It is urged that the money was paid to appellees, and the fact is evidenced by their, receipts on file in the office of the probate court. The payment of the money, and the execution of these receipts, are positively denied by appellees, and they are corroborated by the testimony of as many as three witnesses who were familiar with their handwriting, who say it does not resemble, nor do they believe it is, theirs. This evidence stands unimpeached, and if it may be believed, the receipts are overcome.
It is also urged that the great delay in asserting their rights, having waited until after their father’s death, is evidence that the claim of appellees is fictitious. It seldom occurs, as experience teaches, that a child sues a parent, whatever the wrong, or the right of recovery, and when it is done, so unnatural an act renders the child odious to the community. It would not, therefore, be ex-pected that they would have sued him, however just their claim. It is a rule in chancery practice, that where a claim is barred by the Statute of Limitations in an action at law, the same rule will be applied in a suit in equity, on account of the staleness of the demand. Here is a claim to the equitable title to this land. It is a claim to the title, and not the money that paid for the land, and no action to recover title to land is barred under seven years, and others not short of twenty years." Neither the act of 1835 nor of 1839, limiting the recovery to seven years, can have any application, because neither the pleadings nor the evidence make a case under either statute. If any statute can apply in such a case, it is the limitation of twenty years, and it can not because it was not pleaded, nor has that period of time expired. The suit being to recover the land, it is, and can be, only analogous to an action of ejectment. Had this bill been for an account and for a decree for the money, there would be more plausibility for contending that because an action of assumpsit would have been barred, therefore a decree on the bill would be barred. The suit was not barred, and therefore that defence must fail.
It is urged that the court should have ordered an account to be stated of the rents and profits, and the taxes paid by the widow. She was in the occupancy of the land, and every presumption is in favor of the fact that the rents were greater than the taxes, and there is no evidence to overcome the presumption.
It is also complained that the widow was not allowed the amount of the legacies charged on the land, which she claims to have paid. If it devolved on her by the' terms of the will to pay them, she did not make payment until after suit was brought. By doing so after that time, it was at her peril. She, in making payment, hazarded loss in case of a recovery by appellees. The payment was in her own wrong, and there is no known rule of law that can visit the consequences of that wrong on others. She knew this suit questioned the very validity of these legacies, and she should have awaited the determination of that question.
The whole record considered, we are unable to find any error for which the decree of the court below should be reversed, and it is affirmed.
Decree affirmed.
