Crossman v. Keister

Mr. Justice Farmer delivered the opinion of the court: There is very little controversy as to the facts in this case. The proof on behalf- of complainants in the amended bill was, that when Mrs. Crossman made and delivered the deed for the half section in controversy back to her father and received from him a conveyance to the whole section, her father told her he could not very well divide the section on account of the way it was watered, and that he thought best to give her the section and Nancy Keister the half section; that at that time Samuel Weaver told Mrs. Crossman if he died without the deed having been recorded he wanted said deed given back to her and for her then to convey the half section to Nancy Keister, and Mrs. Crossman agreed to do so. The proof for complainants in the amended bill further shows that Samuel Weaver gave the deed to Matilda Keister, who was employed by him as a house-keeper and who appears to have been much trusted by him, and told her to put it with the other deeds, and if he died without having had it recorded she should give it back to Mrs. Crossman, who would convey the land to Mrs. Keister. At the time this occurred Samuel Weaver was in very feeble health and appeared to realize he could live but a short time. On the day of Samuel Weaver’s death, and a few hours before he died, all his children except Mrs. Keister, who was not there, were called into his room and presence. He then directed Matilda Keister to get the deeds he had made to his children that had not been delivered, and by his direction they were-then and there delivered. When this was done he directed Mrs. Crossman to make a deed to Nancy Keister for the half section. On account of his feeble condition he was unable to talk very plainly, and Mr. Cressler, who stood very near him, assisted him in making himself understood. To his request made to Mrs. Crossman she then and there assented. The next morning after Samuel Weaver’s- death Mrs. Crossman asked Matilda Keister to give her “that deed that pap said I was to have to deed Mrs. Keister.” She was not given the deed just at that time, and later, during the same forenoon, she asked for it again. It was then given her by Matilda Keister, who testified she said to Mrs. Crossman at the time, “You know pap wanted you to deed it over to Mrs. Keister, and she said yes.” After the deed was given to Mrs. Crossman she said, “Now I have got it and I may do something mean.” The proof further shows that on a number of occasions Mrs. Crossman stated she was to convey the land to Nancy Keister. It is also shown by the testimony that at the time Samuel Weaver conveyed to Mrs. Crossman the section of land he told her it was to be in full of her share of all his real estate. We say the proof Shows these things because they were testified to by witnesses who were apparently credible and were not denied by anyone. The theory of the complainants in the amended bill, as stated by counsel, is, first, that the relations between Samuel Weaver and Mrs. Crossman were such, under all the circumstances, as would make her a trustee under a constructive trust, with the duty of conveying to her sister, Nancy Keister, said half section of land; second, the conveyance by Samuel Weaver to Mrs. Crossman of the whole of a section was made in full of her share of the real estate of her father. Appellant contends that there is no proof of fraud on the part of Mrs. Crossman out of which a constructive trust arises that would take the case out of the operation of the Statute of Frauds, and that there was no agreement by Mrs. Crossman to release her interest and expectancy as an heir to the real estate of her father. It is argued by counsel for appellant that she had no title to the half section of land at any time after her agreement with her father to convey it to Nancy Keister, if any such agreement was ever made, and therefore could not become a trustee for its conveyance ; also, that she did nothing to induce her father to retain the title to the land in himself or to prevent him from conveying it to Nancy Keister had he so desired. It is evident from the proof that Samuel Weaver and Mrs. Crossman were both of the impression that if the deed ' to him was not recorded but was delivered back to her the title would be in Mrs. Crossman, and she could then make a valid conveyance of it. The fact that this is not the law does not change the equitable rights and duties of the parties. The delivery back by the grantee, to the grantor, of an unrecorded deed' could not affect the legal title to the land, but such a delivery with the intention that the deed be destroyed for the purpose of re-vesting title in the grantor passes an equitable title. (Sanford v. Finkle, 112 Ill. 146; Gillespie v. Gillespie, 159 id. 84; Happ v. Happ, 156 id, 183.) While the unrecorded deed from Mrs. Crossman to her father was not delivered back to her by him during his lifetime for the purpose of re-vesting title in her so that she could convey it to Nancy Keister, it was, in accordance with his directions and at Mrs. Crossman’s request, delivered to her for that purpose immediately after his death. The violation of a parol promise made by the grantee to the grantor to hold the land in trust or to convey it to a person designated by the grantor would not create a constructive trust in the grantee unless he was guilty of fraud in procuring the conveyance. The Statute of Frauds makes invalid an express trust created by parol, but has no application to cases where the law raises a constructive trust by reason of the fraudulent acts and purposes in procuring title to the land. What constitutes fraud in such cases sufficient to take the case out of the operation of the Statute of Frauds depends in a large measure on the relation to each other of the parties to the transaction. Fraud is much more readily inferred where the parties occupy a confidential or fiduciary relation tqward each other. It seems to be well settled that where a conveyance is made between parties standing in a fiduciary relation to each other, on a parol agreement of the grantee to hold the land 'in trust for or convey it to some one else, when in fact the grantee has no intention of performing the agreement but intends to retain the benefit of the conveyance for his own use, the law raises a constructive trust and takes the case out of the operation of the Statute of Frauds. In such cases equity will compel the performance of the trust. (Larmon v. Knight, 140 Ill. 232; Pope v. Dapray, 176 id. 478.) A large collection of authorities in support of this' proposition will be found in Brison v. Brison, 7 Am. St. Rep. 189. It would hardly be denied that if; when Samuel Weaver conveyed the section of land to Mrs. Crossman, the agreement between them had been that in consideration of the conveyance to her of the 640 acres she would convey the half section to which she held title by a previous conveyance from her father, to her sister, Nancy Keister, without having any intention of performing the agreement while knowing her father relied upon and confided in her to do so, this would be such a fraud that the law would make her a constructive trustee and compel her to execute the trust. In Roby v. Colehour, 135 Ill. 300, the court quoted with approval from the opinion of Lord Chelmsford in Tate v. Williamson, L. R. 2 Ch. App. Cas. 55, as follows: “The jurisdiction exercised by courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary description. The principles applicable to the more familiar relations of this character have been long settled by many well known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation had existed.” In Larmon v. Knight, supra, the court quoted from Hill on Trustees, as follows: “Where a person by means of his promises, or otherwise by his general conduct, prevents the execution of a deed or will in favor of a third party with a view to his own benefit, that is clearly within the first head of frauds as distinguished by Lord Hardwicke, viz., that arising from facts or circumstances of imposition; and the person so acting will be decreed to be a trustee for the injured party, to the extent of the interest of which he has been thus defrauded.” The proof shows that at the time Samuel Weaver made Mrs. Crossman the deed for the section and she made him a deed back for the half section in controversy he was eighty years old, very feeble in health and to all appearances could live but a short time. He was desirous of making disposition of the greater portion of his real estate among his children for that reason. When he made the deed to Mrs. Crossman for the section he told her, as we have before stated, he intended it to be in full of her share in all his real estate. The evidence does not show that Mrs. Cross-man made any reply to this statement of her father but she accepted the conveyance, which gave her the title to the land, with right to the possession of it at the expiration of a lease thereon which expired March i, 1906. She must be held, therefore, to have acquiesced in and accepted the land upon the conditions made by her father. It is true, she did not retain title to the half section under an agreement to convey it to Nancy Keister, but the case, in principle, is much the same as if she had. On account of the advanced age and feeble health of Samuel Weaver it is natural he should desire to avoid engaging in business transactions as far as possible. It is reasonable to presume these considerations influenced him in requesting Mrs. Crossman, in the event of his failing to have the deed recorded and delivering it back to her, to make the conveyance to Nancy Keister. It is evident both of them thought this would make good title. That Mrs. Crossman thought the re-possession by her of the unrecorded deed would re-vest the title in her, clearly appears from the .proof and from her answer to the original bill filed in this case. In that answer she claimed to own the entire half section, and that the deed from her to her father was not intended to be recorded or to pass title to the grantee, and avers that before her father’s death he . directed Matilda Keister to return the deed to her in pursuance of their agreement, intending thereby to re-vest the . title in her. But it is contended the proof does not show Mrs. Cross- ■ man had any fraudulent intent at the time of the agreement between her and her father, when the deeds were exchanged between them. The proof does not sustain this contention. It is shown by the evidence, as before stated, that on the day of Samuel Weaver’s death, and some five or six hours prior thereto, he repeated to Mrs. Crossman his request and direction that she convey the land to Nancy Keister, and she assented thereto. It is further shown by the evidence she said, after she had stood at the bedside of her father and assented to his request and before his death, that she wanted to get the deed back, as she thought she ought to have the land because they had spent all they made on it; that her lawyer had advised her to steal it, and that it would be all right if she got it back without her father’s knowledge. That she made these statements Mrs. Crossman did not deny. Whether, therefore, she had the fraudulent purpose and. design in her mind to refuse to comply with her agreement with her father at the time it was originally made, it is true she had such fraudulent purpose and design before his death and before he repeated his request to her and she again agreed to it on the day of his death. It thus appears that prior to her last agreement with her father to convey the land to Nancy Keister she had no intention of doing so, for she had previously consulted a lawyer with reference to getting the unrecorded deed back in her possession for the express purpose of claiming the land herself. Just how soon after the exchange of deeds between Mrs. Crossman and her father she consulted a lawyer with reference to getting the unrecorded deed back again does not appear from the evidence, but it could not have been very long after that transaction, for the deeds were exchanged February 16 and Samuel Weaver died on the gth of March following. Taking the proof altogether, it tends strongly to show that when Mrs. Crossman first agreed with her father to convey the half section of land to Nancy Keister she did not intend to do so, but made the agreement with a fraudulent intent and purpose in her mind to influence her father not to record the deed and convey the land to Nancy Keister, in order that she might profit thereby. The fact that Samuel Weaver died with the legal title in him and that Mrs. Crossman would by law inherit only the undivided one-fifth of the land does not alter her relations to whatever interest she succeeded to in the land, nor relieve her of the duty and obligation, as a constructive trustee, to convey it to Nancy Keister. Much reliance is placed on Lantry v. Lantry, 51 Ill. 458, by appellant, but we think that case is by no means conclusive of this case. In the Lantry case, John Lantry conveyed to Thomas Lantry, by absolute deed, eighty acres of land. John Lantry had a son born after he was divorced from his wife and who never lived with his father. When he made the deed to his brother he was ill and expected to be taken care of by the brother, who asked him at the time if his son was not to have something. John Lantry replied, “If the boy is worthy, give him what you please; if not, never look at him.” The court held in that case there was no evidence Thomas Lantry ever said or did anything to induce his brother to convey the land to him or to prevent him from conveying it to his son. Such is not the case under this evidence. It cannot be said that Mrs. Crossman’s promise to convey the land, to Nancy Keister did not induce her father to withhold the deed from record and not himself convey the land to said daughter. If Mrs. Crossman had refused to agree to comply with her father’s wishes, it is reasonable to infer that he would in that case have attended to the matter himself. Even on the day of his death, if she had repudiated the trust reposed in her by her father when he again told her to make the deed to Nancy Keister, there would have then been time enough for him to have made it himself, for the proof shows, though very weak, his mind was clear and he lived some five or six hours ■ after that promise was made by Mrs. Crossman. Our conclusion from the evidence is, that Mrs. Cross-man, by her fraudulent undertaking and promise after she had received what was intended by her father and accepted by her as her full share of his real estate, induced her said father not to convey the land in controversy to her sister, Nancy Keister, for the purpose and intention of profiting thereby herself. If we are correct in these conclusions, whatever of interest she succeeded to in the land as a result of her fraudulent conduct she cannot be permitted to retain, but is in equity bound to convey to Nancy Keister. A trust thus created need not be in writing. It was aptly said in Brown v. Doane, 86 Ga. 38: “There is no law which requires a fraudulent undertaking to be manifested by writing. Those who use promises which they make deceitfully, for the. purpose of accomplishing fraudulent designs-, are generally careful not to furnish written evidence of their turpitude. Such promises, whatever may be their terms, do not, unless reduced to writing, raise express trusts, but the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust.” We have examined the large number of cases cited in the exhaustive brief of appellant, but deem it unnecessary to comment on them or attempt to distinguish them from this case. It is sufficient to say that the weight of authority is as we have herein stated. Whether the acceptance by Mrs. Crossman of the section of land in full of all her interest in and to her father’s real estate was of itself sufficient to deprive her of any interest in the land in controversy, in the view we take of the case is not necessary here to be decided, though it has been repeatedly held in this State that the parol promise of an heir to accept a certain amount of property in lieu of his expected interest in his father’s estate, when followed by the execution and delivery of a deed and the possession of . the property conveyed, is valid. (Gary v. Newton, 201 Ill. 170; Kershaw v. Kershaw, 102 id. 307; Galbraith v. McLain, 84 id. 379.) Whatever may have been the legal effect . of this agreement standing alone, considered in connection with the other proof in this case it.clearly establishes such fraudulent conduct on the part of Mrs. Crossman that equity cannot permit her to profit thereby. The decree of the circuit court is affirmed. Decree affirmed.