Fleming v. McHale , 47 Ill. 282 ( 1868 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

It will be more convenient to consider this bill, as an original bill filed for the purpose of decreeing the title to the lands described in it, out of the defendants’ heirs at law of Mary McHale, deceased, and into John McHale, the complainant, claiming in his own right.

John McHale alleges that the land was purchased by him and his deceased brother, James, of I. M. Hurd; that they paid the first instalment of the purchase money, being three hundred dollars, the price to be paid being in all ten hundred and eighty dollars; that they were supposed by Hurd to be under age at the time, and as time was given for the residue of the purchase money, Hurd thought it most prudent that the deed should be made to their mother, Mary McHale, who should execute her note for the balance of purchase money, giving, at the same time, a mortgage on the land to secure its payment, and with the understanding by all the parties that they, John and James, should and would pay the note and satisfy the mortgage. They paid Hurd the annual interest on the note, took possession of the land and improved it.

Mary McHale died, leaving the defendants and complainant her only heirs-at-law. James then died, leaving complainant, John, and the defendants his only heirs-at-law.

The bill pravs that one equal half part of the lands bought of Hurd, may be decreed to be the sole próperty of complainant, and the other half, the property of defendants and complainant in equal proportions, as heirs-at-law of the brother James, deceased.

This is the scope and object of this proceeding, and complainant’s theory is, that as he and his brother contracted with Hurd for the purchase of the lands, and made the first payment on them as agreed, the execution of the deed to their mother only conveyed the legal title to her, which she held in trust for their benefit. That as they had, subsequently, paid off the note and mortgage, their mother, if living, would be decreed to convey the legal title to them, and, being dead, her heirs-at-law are under the same obligation and duty.

Do the facts show a resulting trust ? A careful examination of the testimony satisfies us that it is fully and clearly established. Hurd’s testimony, who was the vendor of the land, is so clear in all its details, he seems so indifferent between all the parties, and speaks with such full knowledge, which his position enabled him to obtain, of the transaction, that the mind cannot doubt that the whole affair, from its inception to its termination, was the business and concern of James and John McHale alone, the name of their mother being used from prudential considerations merely. They paid down the first instalment, and the balance when due, paying interest régúlarly, took possession and improved the land. If all these do not establish a resulting trust in their favor, or that their mother held the legal title for their benefit, we do not know what facts would; they fulfill all the requisites of such a relation.

We agree with appellant, that a resulting trust can only arise in favor of a person who claims to have furnished the consideration money, when such consideration, or some aliquot part thereof, was furnished as part of the original transaction, at the time the purchase was made, and the claimant must have occupied a position originally, which would have entitled him to be admitted in the place of the person to whom the conveyance is made. Perry v. McHenry, 13 Ill. 227. Appellant insists, that as the purchase price of the land was ten hundred and eighty dollars, the sum paid by the young men, three hundred dollars, was not an aliquot part thereof, and such part must be paid, as, one-half, one-third, or the like. Technically, three hundred dollars were not an aliquot part of ten hundred and eighty dollars, because the latte;1 divided by the former leaves a remainder. Tet it was the whole amount required as the first- payment. It was in part performance of the contract of purchase, and all that was demanded at the time. Had the contract been one-third down, or one-half, and a less amount-paid, then it could not be said an aliquot part was paid, but when, as in this case, a definite sum was to be paid, less than one-third, and it was paid, the contract to that extent, is performed. That this money, or the note representing the money, was the property of these young men, can hardly be doubted. Hurd testifies they were made payable to the boys, and not amounting to quite three hundred dollars, they made up the deficiency. The notes were on D. & J. S. Beatty, who seem to think the notes were payable to the mother. They were for the work and labor of these boys, and if they were payable to the mother, the whole transaction as detailed by Hurd, satisfies us she had permitted the boys to appropriate them for their own use in the first payment of the land. She never paid one farthing of the consideration money, at any time. James and John contracted for the land in the first instance—paid the first instalment—paid interest on the deferred payment, and finally paid that—took possession of the land and improved it.

It is a case too plain for controversy or doubt.

■ The decree must be affirmed, except as to the costs against the infant defendant.

Deoree affirmed.