| Ill. | Sep 30, 1881
delivered the opinion of the Court:
The decree of January 23, 1878, in the case of the Gays against the Wrights, as an adjudication of the rights of the minor children, Benjamin and Jacob Douglas Gay, we do not regard as entitled to any consideration. The proof very clearly shows that James B. Gay had no authority or right to bring the suit for them as their next friend. He does not pretend to have had any other than as arose merely from his being administrator of the estate of their deceased father. The proceeding did not purport to be in the interest or for the benefit of the minor children, but it was for the benefit, solely, of the other co-complainants, James B. Gay and John T. Gay, in order to enable them to realize from the land a certain sum of money alleged to have been advanced by them, with William Douglas Gay, as partners, toward the purchase of the land, for the payment of which the land was alleged to stand as security, the title for that purpose having been taken in the name of William Douglas Gay. The interest of the minor children of William Douglas Gay was adverse to, instead of in favor of, the proceeding, and their place in the suit was as defendants, so that they could have been served with process as such, and have had an opportunity to defend.
We should have been satisfied with the decree here had it merely set aside that former decree, and pronounced it of no force as affecting the rights of these minor children. But the bill is not one merely to impeach the former decree, but it alleges the entire right and title to be in the complainants, denies there to be any in defendants, and asks not merely to have that decree and the master’s deed thereunder set aside, but to have the quitclaim deed of Simms to the defendants set aside, that the title to the land be decreed to be in the complainants, and that defendants be perpetually enjoined from asserting any title thereto; and upon full proofs taken as to the respective rights of the parties in the land, the court decreed as the bill asked, to the full extent. We have then to inquire further, whether, rejecting the former decree as of any force, the proofs otherwise sustain the decree as to the full rights of the parties.
There is no controversy in regard to the facts. It appears that in 1855 one William E. Simms sold the land to R. H. Wasson, trustee for Mrs. Wright, the mother of the defendants, taking notes for the purchase money, and giving a written contract to convey on payment of the purchase money; that Mrs. Wright and her husband, with the defendants, their children, have been in possession of the land, living on it, and making improvements, ever since; that default having been made in the full payment of the purchase money, one Troutman, to whom Simms had assigned said notes and contract, filed a bill in chancery to subject the land to the payment of the notes, and a decree was rendered for the sale of the land for that purpose, and a sale and deed of it were made by J. R. Cunningham, a commissioner appointed, to William D. Gay, for $5600, as reported by the commissioner, in December, 1864. This sum seems to have been in excess of the amount of the debt due Trout-man by some $1300, which Troutman remitted. This is the purchase and title of William D„ Gay, under which complainants claim as his heirs. All that William D. Gay paid toward the purchase of the land was some $2200 or $2300, and under the following circumstances: The three Gays,— John T., James E. and William D., brothers of Mrs. Wright,— were partners together, and resided in Kentucky. Prior to the sale there was an agreement made between the three Gays and Mr. Wasson, the trustee for Mrs. Wright, that the Gays would purchase this land, on which the Wrights were residing at the time, for the benefit of the Wright children. The three Gays borrowed the money, some $2200 or $2300, from a sister, Mrs. Bird, they giving their note for it, which John T. and James E. afterward paid. William D. was sent to Illinois to make the purchase for the benefit of the children, and take the title in his own name for the security.of the money to the Gays.
There can be no doubt, from the evidence, that such was the transaction in fact, and the only question in the case is the legal one, whether the arrangement for the purchase of the land for the benefit of the defendants, not being in writing, is void under the Statute of Frauds.
It is very well settled, by decisions of this court, that oral evidence is admissible in equity to show that an absolute deed was intended as a mortgage. (Reigard v. McNeil, 38 Ill. 400" date_filed="1865-04-15" court="Ill." case_name="Reigard v. McNeil">38 Ill. 400, Rucknan v. Atwood, 71 id. 155, Strong v. Shea, 83 id. 575, and many other cases.) The money was clearly advanced by the Gays for the purchase of the land for the benefit of their sister’s children, the defendants. The uncontradicted testimony of James E. Gay is, “the title was taken in his (William D. Gay’s) name, because he was a single man,—was not made to Wrights because we wanted to secure the money we put in it. ” This shows that the deed to William D. Gay, though absolute in. form, was but as a security to secure to the Gays the repayment of the money which they had advanced for the children.
Again, William D. Gay went from Kentucky to Illinois to attend the sale of the land, under an agreement with his two other brothers, to purchase the land for the benefit of their sister’s children. Edwin Wright testifies that William D. Gay “did not purchase it (the land) for himself; he purchased it for the benefit of my children, who were also his sister’s children. He stated that in the presence of several persons on the day of sale. It was a distinct understanding between him and Troutman before the sale, that he would purchase the land in controversy for the benefit of my children. ” It would, under such circumstances, be a fraud upon the other two brothers, as well as others, for William D. Gay, or his heirs under him, to set up right in him, and claim to hold the property as his own, as having been purchased for his own benefit absolutely.
In 2 Washburne on Real Property, (3d ed.) p. 451, after discussing the rule under the Statute of Frauds that no trust can be raised by mere agreement, unless in writing, the author adds: “If a grantee obtain a deed by means of promises to hold the land for another, this is sufficient to raise a trust in favor of the latter, on the ground of fraud, and this may be proved by parol.” To the like effect is Roller v. Spillman, 13 Wis. 33, and see Dennis v. McCagg, 32 Ill. 429" date_filed="1863-04-15" court="Ill." case_name="Dennis v. McCagg">32 Ill. 429.
It further appears that William D. Gay, in his lifetime, did make a deed to the defendants for the land, and sent it to them, and that they had it in their possession some months, and that on the advice of their father it was sent back, because the signature of Gay’s wife was not to the deed.
The decree which was rendered in this ease must be reversed, and, strictly, complainants would be entitled to a' decree setting aside the former decree in the other case, and the master’s deed thereunder, in accordance with the view above expressed upon that subject; but as that would be of no practical benefit to complainants, under the proofs in this case showing defendants’ right to the land, we think that in the interest of both parties, and to end litigation, there should be a decree dismissing the bill, and ordering equitably as to costs.
t, , • Decree reversed.