Holderman v. Gray , 130 Ill. 442 ( 1889 )

Mr. Justice Craig

delivered the opinion of the Court:

The deed from Frankie V. Gray and complainant to Charles H. Wyman recites a consideration of $1000 as paid for the lots, but it is not shown by the evidence that any consideration was in fact paid by Wyman for the deed, and we think it is apparent, from an examination of all the evidence, that no consideration ever passed from Wyman for the property. Wy-man never went into the possession of the property, but the possession remained in complainant after the deed was executed, as it did before. Wyman paid no taxes on the property after the deed was made to him, but the complainant, each year after the making of the deed, paid the taxes, as he had done from the time he made the purchase, in 1867. Wyman exercised no acts of ownership over the property, and when spoken to in regard to it, referred parties to the complainant. Wyman at one time owned certain lots in the same locality where these lots are situated, and after he had sold them, and while he held the deed to the property in controversy, he declared that he had “got clear of the last piece of property he owned in Paxton.” Indeed, Wyman never, at any time after the conveyance to him, during a period of nearly twelve years before his death, treated the property as a person would who owned it; and while there may be some doubt in reference to the true nature of the contract between Wyman and complainant when the deed was made, we think it is apparent that Wyman paid nothing for the property, and did not receive the deed as a purchaser.

If, then, there was no consideration for the deed, the next question to be determined is, whether WymaWheld the property in trust for complainant. The contract for the lots was purchased, in the first instance, by complainant, in 1867. This is shown by Shepardson, who testified that he sold the contract to E. G. Gray, and he paid for the same. Shepard-son assigned the contract to complainant. It is true that Gray subsequently assigned the contract to Frankie Y. Norton, whom he subsequently married; but there is no evidence that she paid anything for the assignment, and we do not regard the assignment to her of any special importance. After a due consideration of all the evidence, we think it fair to conclude that complainant purchased the property, and owned it when the conveyance was made to Wyman. The complainant testified that Wyman paid nothing for the property, and that he held it in trust, to be conveyed to him, or to such person as he might direct. He also testified, that he received two letters from Wyman after the deed was executed, in which Wyman wrote, over his own signature, that in case complainant’s wife recovered, he was to convey the property back to her, but if she died, then he was to convey to complainant, or to any other person as complainant might direct.

If this evidence was competent, it might, in connection with the other facts proven, authorize the court to render the decree. But it is said that the defendants interposed their defense as heirs of Charles H. Wyman, deceased, and under the statute the evidence of complainant is inadmissible. Under the terms of our statute" we do not think that the evidence of complainant was admissible. But excluding complainant’s evidence, he established substantially the same facts by the witness Earl. Earl, as he testified, had two conversations with Wy-man, in which the latter stated how he held the title to the lots, and he testified that he saw and read the two letters which complainant testified were written by Wyman. It is said this witness is not to be believed ;° but he was not impeached, and so far as this record shows his evidence is reliable.

It appears that the sheriff called on the complainant with executions, and demanded property, and that complainant told the sheriff that he had no property, and this admission, it is insisted, is strong evidence that complainant had no interest in the property in controversy. If the defendants had interposed the defense that complainant had,conveyed this property for the purpose of defrauding creditors, such evidence might have an important bearing in the decision of the ease; but that defense was" not relied upon, and we do not regard the declaration made to the sheriff, under the circumstances, as of controlling importance. We do not, however, regard it necessary to enter upon a close analysis of all the evidence introduced on the trial, but we are inclined to hold, after due consideration of the evidence, that it is sufficient to sustain the decree.

The decree will be affirmed.

Decree affirmed.