232 Ill. 373 | Ill. | 1908
delivered the opinion of the court:
Disregarding other questions, the proof upon which Nora Elmore Lung relies is not sufficient, in our judgment, to establish a resulting trust in her favor in the land involved in this controversy. It appears from that evidence that during her minority Hon. John C. Bagby, of Rushville, was her guardian. After she reached her majority, and on July 3, 1882, he made his final report, which shows a balance paid to the ward of $367.25. On August 11, 1882, William Hardin purchased the eighty acres in question from Edward T. Morgan for the sum of $900. Hardin was the husband of appellee’s mother. Mrs. Hardin had been married to one Elmore prior to her marriage to Hardin and appellee was a daughter of the first marriage. At the time of the transactions above mentioned appellee was residing in the family of her mother and step-father. Morgan testified that the agreement for the sale of the land was reached between himself and Hardin upon the land itself; that he received on account of the purchase price of the land a young horse at $75 and a promissory note given by Hugh McClintock for $90.10; that Mr. Hardin told him to come to Judge Bagby’s office, in Rushville, as he (Hardin) was going to get some money of Bagby; that they came to town, Mrs. Hardin coming along, and the balance of the money was paid to him in town and the deed was there executed.
It appears that on August n, 1882, Hardin and wife executed to John C. Bagby a mortgage on the eighty-acre tract in question to secure Hardin’s promissory note for the principal sum of $404.65. This sum added to the amount of the McClintock note and the price of the young horse 'makes a total of $569.75, which deducted from the purchase price leaves a balance of $330.25. The court found that Hardin paid this balance with appellee’s money, and that as a consequence thereof a trust resulted in her favor, making her the equitable owner of 330/900 of the eighty-acre .tract.
C. A. Lance testified that he had been acquainted with Hardin in his lifetime, and that Hardin had said to him that he did not have any property at the time he married Mrs. Elmore and that she had the money with which he purchased this land. Frank Hardin, a son of the deceased, testified that he was fourteen years of age at the time the land was purchased from Morgan; that his father gave Morgan a colt and a promissory note and mortgage against Hugh McClintock to apply on the land, “and got part of my half-sister’s money and paid on it, and I think borrowed the rest of Judge Bagby.” He was then asked whether “they received all of Nora Elmore’s money,” and replied: “I couldn’t say whether they got all of it,—about $300 I guess.”
We have above stated the substance of the competent evidence offered on the part of Mrs. Lung. The testimony of her husband was also taken but was excluded on the ground that he was incompetent, and the court’s ruling in that respect is not here questioned.
Counsel for the defendants in the cross-bill then offered the testimony of Carrie Stambaugh, who was one of such defendants and who is one of the appellants. Her testimony was objected to on the ground that she was incompetent, and the court stated that he would hear the evidence subject to the objection. Thereupon she testified that she was a daughter of William Hardin, and that prior to her marriage, eleven years before, she had resided with her father’s family; that she had heard Nora Elmore’s money discussed at the home of her parents; that her father said he had owed this money to Nora but that he had paid it; that he had paid to the Elmore children all the money that he owed them, except $60 or $65 which he owed to Tom, a brother of Nora; that he owed this money to Tom by reason of the fact that he had borrowed of him the same as he had borrowed of Nora, and that the amount he had borrowed of Nora was something over $300. Thereupon the attorneys for complainant in the cross-bill withdrew all objection to the testimony of Mrs. Stambaugh. It is upon the proof which we have thus summarized that the question whether a resulting trust existed is to be determined.
The presumption from the fact that the deed was executed to Hardin is that he purchased the land with his own money. (Reeve v. Strawn, 14 Ill. 94; Francis v. Roades, 146 id. 635.) “The rule is well settled that where the evidence is doubtful and not entirely clear and satisfactory, or is capable of reasonable explanation upon theories other than that of the existence of. an implied or resulting trust, such trust will not be held to be sufficiently established to entitle the beneficiary to a decree declaring and enforcing the trust.” McGinnis v. Jacobs, 147 Ill. 24; Strong v. Messinger, 148 id. 431; Goelz v. Goelz, 157 id. 33.
There is not the slightest evidence in this record that William Hardin had possession of the money of his stepdaughter at any time prior to the day on which the deed to him was made, or that he at any time held it as agent or trustee or in any other fiduciary capacity. The averment of the cross-bill to the effect that Hardin had appellee’s money in his possession and custody for investment finds no support whatever in the proof. The evidence of Mrs. Stambaugh was incompetent. Counsel for Mrs. Lung having withdrawn in the circuit court their objection thereto, now insist that it shows that Hardin received appellee’s money. If that be true it also shows that he borrowed the money. If the money was loaned to him no trust resulted. If, however, Mrs. Stambaugh’s testimony be disregarded, it is impossible to determine from the undisputed proof made by appellee whether Hardin borrowed the money or whether he came into possession of it as an agent or trustee of appellee. In this uncertain state of the proof we do not think it can be said that the cross-bill was proven.
The decree will be reversed and the cause will be. remanded to the circuit court, with directions to dismiss the cross-bill as amended for want of equity, and for further proceedings consistent with the views herein expressed.
Reversed and remanded, with directions.
