| Ill. | Oct 31, 1891
delivered the opinion of the Court:
This is a bill to declare and enforce a resulting trust. There is some conflict in the evidence, but we are of the opinion "that when due consideration is given to all of it, there is a clear, preponderance in favor of appellee. The parties are father. and son, of German nationality, and the former does not speak or understand English, and is ignorant of legal forms and requirements, while the latter understands and speaks English, and is a competent and shrewd business man. A part of the money invested in the purchase of the property in controversy appears to have been earned by the labor of appellant, but he was, at the time, a minor, not enfranchised, and he and appellee then lived, and so continued to live, until after the purchase of the property in controversy, as members of a common family, and appellee, having faith in the capacity and fidelity of appellant in business matters, at the time this property was purchased gave him his entire confidence, and relied upon what he did without question as being right. These facts explain, satisfactorily, conduct of the appellee which, had the business capacity and intelligence and personal relations of the parties, respectively, been different, would have appeared inconsistent with the claim that appellee makes, and they reconcile "such conduct with the testimony given by himself and others in his behalf.
It is objected that the decree declares that the legal title shall “rest absolutely and forever” in appellee, “free and clear of any right and estate of dower and homestead,” notwithstanding appellant’s wife is not made a defendant to the bill, and there is no allegation in the bill with reference to the homestead or the dower claim of appellant’s wife. This may be conceded to be an error, without admitting that it is such as should work a reversal of the decree below. There is nothing in the pleadings in this case showing that appellant has a wife, and we can not act upon the casual remarks of witnesses in that respect, and determine therefrom that proper parties were not before the court. The bill makes no allegations showing that appellant has a wife, and therefore if he, in fact, has one, and he is prejudiced by not having her made defendant, he should plead the fact. If he has a wife who has rights in, the matters involved in this litigation, it is quite clear that. she can not be concluded by the decree herein. So much of the decree as assumes to determine the right of dower can not affect appellant, and therefore he is not injured thereby.
The resulting trust alleged in the bill is inconsistent with the existence of the right of homestead in appellant, and the resulting trust being found by the court to exist, the right of homestead is necessarily determined to not exist; and so, while the language of the decree in respect of the homestead right is not, in strictness, authorized, it can do no harm. There was a prayer in the bill in addition to that to declare and enforce a resulting trust in real estate, for an account, and for decree- against appellant for balance of money thereupon to be found due from him to appellee. The decree recites that appellee, on the hearing, abandoned all claim for moneys due on an accounting, and asked for a decree, which was rendered, respecting the real estate only.
It is contended that the court erred in not referring the cause to the master to take and report an account. Appellant filed no cross-bill, and was, consequently, entitled to no affirmative relief in respect to matters of accounting between him and appellee. It 'certainly, therefore, could not injure him that appellee abandoned his claim for money due on an accounting. It was purely discretionary with the court whether to refer the question of a resulting trust to the master.
"We find no error in the decree, and it is therefore affirmed.
Decree affirmed.