| Ill. | Jan 19, 1893
delivered the opinion of the Court:
It is a familiar and well established rule, that where one purchases land with his own money, and the legal title is taken in the name of his wife or child, the law raises a presumption that it was intended as an advancement. Finch v. Finch, 15 Ves. 50; Read v. Huff, 40 N. J. Eq. 234, and cases cited; Maxwell v. Maxwell, 109 Ill. 588" date_filed="1884-03-29" court="Ill." case_name="Maxwell v. Maxwell">109 Ill. 588; Perry on Trusts, see. 146.
The presumption thus arising may be rebutted or supported by evidence of antecedent or contemporaneous acts, facts or circumstances, connected with the purchase, or so immediately thereafter as to be fairly considered a part of the transaction itself. Cases, supra; Robinson v. Robinson, 45 Ark. 484; Perry on Trusts, sec. 147.
Are the facts presented by the record in this case sufficient to overcome the presumption, attaching to the conveyance in question, that the same was intended by appellant as an advancement to his wife ?
The complainant’s bill alleges that at the time of the purchase of said real estate, he was closely engaged in business, and, not having time to attend to the details thereof, entrusted the same to his wife, Adelaide Smith; that it was the intention to have the title to said real estate taken in complainant’s name, but he discovered afterward that it had been taken in the name of his wife; that his wife knew all the time that the same belonged to and should have been taken in the first instance in the name of complainant. These allegations are evidently intended to impute fraud and artifice, upon the part of appellant’s wife, in taking the deed to the property, and indirectly and inferentially charge that she being entrusted “ to attend to the details of said purchase,” surreptitiously procured said deed to be made to herself as grantee, instead of to her husband, the appellant. Admitting that these allegations amount to a substantial charge of fraud, or to any other statement of fact, sufficient, if sustained by the evidence, to overthrow the presumption attaching to the conveyance, the bill is-not borne out and supported by the evidence in the case.
It is clear to our minds, from the evidence in the record, that from the time Mr. Calhoun’s connection with the negotiations ceased, no one had anything to do with the purchase, other than appellant himself, until the day the transaction was closed. Mr. Calhoun, in his testimony, leaves the appellant to go ahead, and carry on the negotiations for the purchase already inaugurated by his apparently disinterested instrumentality. The appellant procured the abstract of title, which it is reasonable to presume he obtained from or through Mr. White, agent of the grantor, the insurance company, and took the same to his attorney for examination. Afterward the appellant took a mortgage, made out by Mr. White to secure $800 of the purchase price, to said attorney to examine. Appellant and his wife subsequently called at the attorney’s office and signed the mortgage and acknowledged it before him, Mrs. Smith signing the mortgage, four principal notes and twenty interest coupons first, and appellant signing after her, under the direction of appellant’s attorney. Appellant then handed a check of $675 to said attorney, and directed his wife and said attorney to go to White’s office and close the transaction.
Appellant, instead of trusting the details of the purchase to his wife, performed every act, ordinarily incident to the purchase of real property, and his wife does not appear in the transaction in any essential particular, if at all, until the day the purchase is closed. All the connection then shown consisted in her executing the notes and mortgage and going with the attorney to turn over the same and the check to Mr. White, and obtaining the deed which was executed ready for delivery.
The deed and its acknowledgment in Hartford, Conn., the mortgage, notes and interest coupons all bore date October 1; the transaction was closed December 1, prior to which latter date there is not a scintilla of evidence showing or tending to show that appellant’s wife had any connection, directly or indirectly, with the purchase of the property. Undoubtedly, if the wife, by fraud or wrongful act against the intention of the husband, had.obtained the conveyance to be made in her name, the presumption of an advancement would be rebutted, and the presumption that she held in trust arise. Perry on Trusts, sec. 148, and cases cited. But there is absolutely no evidence tending to sustain the allegations of the bill in that regard. It may be that the death of White and of Mrs. Smith, and the consequent disqualification of appellant, renders it impossible to show the true state of the case.
The burden being upon appellant, he must establish the necessary facts, either by direct proof of a contrary intention, or of facts and circumstances which will overcome and rebut the presumption. The presumption of fact, where the deed is made to the wife, that it was intended as a gift or advancement, must prevail until overcome or rebutted by proof of such facts and circumstances as will satisfy the conscience of the chancellor that the conveyance was in fact taken 'to the wife for the benefit of the husband. In this case, independently of the proof that the consideration was paid by the husband, there is evidence of no fact or circumstance, as we read the record, inconsistent with the presumption. Indeed, the only competent evidence in the record tends to show that the husband had the deed made to the wife, and that he recognized the title to be in the children of the wife after her death intestate. It is unnecessary, therefore, in this case to consider the many authorities cited where an attempt has been made to lay down a rule as to the measure and quantum of evidence necessary to overcome the presumption of a gift or advancement. The burden is, at least, on the party holding the affirmative, to make out his case and show that an advancement was not intended. Perry on Trusts, sees. 145-152, and cases supra.
The decree dismissing the bill was properly entered and must be affirmed.
Decree affirmed.