Lewis v. McGrath

Mr. Justice Hand delivered the opinion of the court: It is first contended that the evidence is not sufficient to sustain the decree entered in this case. Upon a careful examination of this record we are of the opinion the findings of fact as made by the master and approved by the chancellor were fully justified by the evidence. It is further contended that Mary McGrath held the title to said premises in trust for James J. McGrath, and that the deeds to Waddington and McGrath were made for the purpose of carrying out and executing such trust. We do not agree with such contention. The evidence shows that the title to these lots was in James J. Mc-Grath; that he conveyed the same to John F. Browne; that John F. Browne, at his instance and request, conveyed the same to his wife, Mary McGrath. Browne testifies that such conveyance was made to Mary McGrath absolutely, and in order that she and her children might own this property and be able to hold the same against the creditors of James- J. McGrath. While this conveyance may have been fraudulent as to the creditors of James J. McGrath, it was a binding and valid conveyance as against him and all persons claiming- through or under him. Where the husband causes property to be conveyed to his wife, the presumption is that the same was given to her as an advancement, and the burden of proof is upon him to establish the contrary. There is no such proof in this record. On the other hand, in the affidavit filed in the bankruptcy proceeding by James J. McGrath he stated he had no interest therein. In Dorman v. Dorman, 187 Ill. 154, we say (p. 158): “A resulting trust arises, by implication of law, from the acts of the parties. (Donlin v. Bradley, 119 Ill. 412; VanBuskirk v. VanBuskirk, 148 id. 9; 1 Perry on Trusts, sec. 134.) When the evidence shows the payment of the purchase money by one and the conveyance of the title thereby purchased to another, between parties who are strangers to each other, the law so construes these two facts as to make them constitute a resulting trust. (Smith v. Smith, 85 Ill. 189; VanBuskirk v. VanBuskirk, supra.) If the legal title is taken in the name of the wife such implication does not arise, it being the presumption that the same was intended as an advancement. (Smith v. Smith, 144 Ill. 299.) Such presumption may, however, be rebutted by parol testimony, if the same is clear and satisfactory. * * * The rule thus announced has been fully recognized by this court in numerous cases.—Taylor v. Taylor, 4 Gilm. 303; Adlard v. Adlard, 65 Ill. 212; Wormley v.Wormley, 98 id. 544; Johnston v. Johnston, 138 id. 385; Smith v. Smith, 144 id. 299; Goelz v. Goelz, 157 id. 33; VanBuskirk v. VanBuskirk, 148 id. 9; Pool v. Phillips, 167 id. 432." Our conclusion therefore is that Mary McGrath was the absolute owner of said property at the time of her death, unless she had transferred the same by a valid conveyance prior thereto. It is next contended that the court erred in holding that the burden of proof was upon James J. McGrath, or the parties claiming title through him, to establish that the obtaining of the deed for said lots from said Mary McGrath was a fair transaction and free from any undue influence. We have already held that the lots were the property of Mary McGrath and that she did not hold them in trust for her husband. It is admitted that the deed purporting to have been made by said Mary McGrath was without consideration. It was made thirteen days before her death and at a time when she was in a very weak condition, both mentally and physically, and when, by reason of the confidential relation which existed between her and her husband, she could have been readily prevailed upon by him to make such deed. We do not think, therefore, where a deed is obtained under such circumstances, the rule a harsh one "which requires a person claiming title thereunder to be required to show that the transaction was a fair one and entered into by the grantor understanding!y. (Sands v. Sands, 112 Ill. 225; White v. Ross, 160 id. 56; Ross v. Payson, id. 349; Dorsey v. Wolcott, 173 id. 539.) In Sands v. Sands, supra, we say (p. 232): “The rule is, where a person enfeebled in mind, by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done throug'h the influence of the donee.” We have considered this case thus far upon the theory that Mary McGrath actually signed said deed, but that the evidence failed to show she had sufficient mental capacity to execute the same or that the same was fairly obtained from her. Under the evidence in this record we are satisfied such deed was never signed and acknowledged by Mary McGrath. During the time that intervened between such surgical operation and the death of Mary McGrath, and at the time it is claimed said deed was executed, the complainant Mary T. McGrath, together with her cousin, Mary Kelley, and a Mrs. Coleman, attended upon said Mary McGrath, with some assistance occasionally from some of the neighbors, but either the said Mary T. McGrath, the said Mary Kelley or Mrs. Coleman was in the room with said Mary McGrath all the time, as they all testified positively, and that neither C. C. Gilmore, the said notary public before whom said deed purported tobe acknowledged, or anyone else, ever presented to Mary McGrath any deed or other paper for her signature or acknowledgment during that period, and that no such person as Gilmore ever entered her room during that time. This testimony is not contradicted, and two of the witnesses are disinterested parties. John F. McGrath testifies he had a conversation with his brother, James J. McGrath, in the winter after the death of Mary McGrath, in which he asked him if he would have to go into court about his wife’s property; that James said, “It is a slow way and I will get out of it if I can;” that he had another conversation with him in the following spring, when he asked him what he ever did about the property. He said: “I fixed the whole thing up. It is all on record. There is nobody to ever question it, only the children, and it belongs to them anyway. They will never bother. We will get out of great costs.” We think this evidence sufficient to overcome the notary’s certificate. Kerr v. Russell, 69 Ill. 666; Lowell v. Wren, 80, id. 238; McDowell v. Stewart, 83 id. 538; Griffin v. Griffin, 125 id. 430. We do not agree with the contention of the appellant that the plaintiffs have been guilty of such laches in either the commencement or prosecution of this suit as to bar them from relief in this case. The evidence shows that the complainant Mary T. McGrath was about eighteen years of age at the time of her mother’s death. She and the other complainants, who were minors, continued to live with James J. McGrath upon the premises for many years. Their relations at that time were friendly and confidential. They did not discover the fact that James J. McGrath claimed to own this property until many years thereafter and at about the time the youngest of the children became of age. Upon making such discovery they immediately filed their bill to set aside and cancel said deeds. While there has been some delay in the prosecution of the suit it has never been abandoned, but, so far as we are able to discover from this record, from its inception up to the time a decree was entered in the court below was carried on in the utmost good faith. The appellant, Oscar A. Lewis, took whatever title he has pendente lite, and acquired no better, title to said lots than was had by James J. McGrath, his grantor. The only evidence introduced b.y him was a deed for said lots executed by James J. McGrath and wife January 8, 1898. The decree of the circuit court will be affirmed. Decree affirmed.