125 Ill. 412 | Ill. | 1888
delivered the opinion of the Court:
It can subserve no useful purpose to discuss the evidence in this record at length. It is sufficient to say that it has all been carefully read and considered, and that we concur in the conclusion reached, as to its effect, by the master in chancery and the circuit court. The facts, as found, do not establish a mere promise to make a gift of the money paid by White to extinguish the liens on the land, but an executed gift. The title having been conveyed by Quincy J. Cannon and Ann Cannon to James G. White at his instance and upon his solicitation, for him to convey to her, any payments of the liens thereon thereafter made by him must be regarded as pursuant to his previous promise to make a gift to her, and therefore they extinguished such liens, and were then an executed gift to her. His retention of the notes and mortgages thus paid off is of no consequence, for, having been paid, they were extinguished and valueless, save as proofs that they had been paid. It is only where the payment of incumbrances is necessary to protect rights of the payer, or where they are paid pursuant to an agreement with the debtor that the payer shall hold them as security for the money advanced, that the payer will be subrogated to. the rights of the holders of such liens, and the liens will he kept alive for his benefit. Where the demand of a creditor is paid with the money of a third person not himself a creditor, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, the demand is absolutely extinguished. (Hough v. Etna Life Ins. Co. 57 Ill. 318; Small et al. v. Stagg, 95 id. 39; Pearce v. Bryant Coal Co. 121 id. 597.) And, a fortiori, must the debt be extinguished and the lien discharged when the payment is made, as here, as a gift to the owner of the land upon which the debt is a lien. The retention of the possession of the evidences of indebtedness by White after their payment, is entirely consistent with the idea that their payment was a gift, for, furnishing, as they do, evidence of the fact of payment, they were very properly retained with the evidence of title which was still in him.
The evidence, it may be admitted, shows that the Cannons, when conferring with White in regard to them indebtedness and their desire for relief, did not expect a gift from him; but it also shows that he determined to make a gift to Ann Cannon, and that when the title was conveyed by Quincy J. Cannon and Ann Cannon to James G. White, it was at his request, and for the sole purpose, and pursuant to an agreement with him, that he should convey it to Ann Cannon. There was no express agreement that a trust should be created. It was not agreed that White should take and hold title for Ann Cannon for some definite time or purpose. It was simply, at his request, agreed that title should be conveyed, and it was thereupon conveyed, to him, that he might convey it to her,—and so the ease is not affected by the statute. His duty to -reconvey attached co instanti the delivery of the deed to him. Having thus received the title upon his express request and pursuant to such contract, and died without having made the conveyance which he agreed he would make, the law, by construction, raises a trust in his heirs, to whom the legal title descended, in behalf of Ann Cannon. Henschel v. Mamero, 120 Ill. 660; Allen et al. v. Jackson, 122 id. 567; Wright v. Gay, 101 id. 241; Fischbeck v. Gross, 112 id. 209.
The fact that White delayed conveying to Ann Cannon with her consent, can he of no consequence so long as no contract was made between them changing her rights. With her consent he executed a lease of a part of the land to her son; but since he had but the naked legal title, while the possession and right of possession were in her, his act, in leasing, is to be regarded as her act, and she was and is entitled therein to whatever rights belong to the landlord.
We find no cause to disturb the decree, and it is therefore affirmed.
Decree affirmed.
