Taylor v. Walson , 177 Ill. 439 ( 1898 )

Mr. Justice Craig

delivered the opinion of the court:

The amended bill filed in this case by the appellants, who are the children of Maria Louise Taylor and Frank C. Taylor, is quite voluminous, but in the view we take of the case it will not be necessary to set out the various allegations of the bill, as the rights of the parties must be determined from the deed of trust executed by Maria Louise Taylor and Frank C. Taylor, her husband, on the 13th day of June, 1871, and what was done under and by virtue of that deed of trust.

It will be seen by an examination of the deed of trust, which is set out as a part of the bill, that the property was conveyed to the trustee, first, for the use and benefit of the grantor, Maria Louise Taylor, and her children, the appellants, to be used and occupied by them as a homestead. But this provision.in the deed made for the benefit of the grantor and appellants was made subject to the trusts and uses which were secondly set out in the deed, the first of which was, that upon the joint written request of the grantors the trustee should sell a portion of the premises for the purpose of raising funds to improve the remainder; the other was, that during the joint lives of Frank G. and Maria Louise Taylor the trustee was required to sell the whole or a portion of the premises free and clear from all trusts created by the deed, upon the request, in writing*, of Frank G. and Maria Louise Taylor. By the express terms of the deed of trust, if a conveyance was made by the trustee under this latter clause all rights of the appellants in the property would immediately cease. The main inquiry then is whether such a conveyance was made.

Upon an examination of the bill it will be found that appellants have alleged therein that on the 10th day of November, 1873, the trustee conveyed lot 3 of said subdivision to Julia S. Taylor, and that Frank C. and Maria L. Taylor joined in the execution of the deed for the purpose of signifying* their assent to the conveyance. It also appears that on the same day, in addition to joining the trustee in the deed he made, Frank C. and Maria L. Taylor executed to Julia S. Taylor a warranty deed of the premises, both of which deeds were recorded in the recorder’s office of Cook county on the 15th day of November, 1873. Under the deed of trust the right to sell a part or the whole of the property was reserved to the said Maria L. and Frank 0. Taylor, the grantors in the deed of trust, during their joint lives, and the trustee, in whom was vested the legal title, was bound to convey at any time upon the joint written request of the grantors, the Taylors, and a conveyance made by the trustee upon the written request of Frank C. and Maria L. Taylor would vest the-title so conveyed free and clear from all trusts created by the deed of trust. Appellants’ amended bill clearly shows not only the reserved rights of Maria L. and Frank 0. Taylor in the premises, but it also discloses the conveyance of the premises, as required by the terms of the trust deed, to Julia S. Taylor. It thus appears, upon the face of appellants’ bill, that the title to the premises passed to Julia S. Taylor.

This deed of trust, and the deed of the trustee to Julia S. Taylor, came before the court in Franklin Savings Bank v. Taylor, 131 Ill. 376, and in speaking of the conveyance under the trust deed it was said (p. 382): “The deed of Frank C. Taylor and Maria Louise Taylor, executed at the same time that the deed, was executed by the trustee to appellee, was a sufficient compliance with this provision, and hence we are of the opinion that, as respects appellee, the power of sale and conveyance was properly exercised.” •

It is, however, claimed that there was no consideration for the deed from the trustee to Julia S. Taylor. It is true that appellants’ bill alleges that there was no consideration for the deed, and it is also true that the material allegations of the bill are admitted by the demurrer; but the bill alleges the execution - of the deed from the trustee to Julia S. Taylor, which recites a consideration of $15,000. In addition to the consideration recited in the deed, the testimony of Julia S. Taylor taken in the case of Franklin Savings Bank v. Taylor, supra, is set out as a id art of the amended bill, in which she testified that her husband made the negotiations for the purchase of the property. ' She further testified that the price to be paid was $15,000. Whether the consideration was paid in land or notes is left in doubt by her evidence, but when all the allegations of the bill in reference to the consideration of the deed are considered together and all given due weight, it cannot be said that the deed in question was without consideration, and hence invalid. Moreover, the rights of appellants in the premises, whatever they were, by the express terms of the deed were subordinate to and subject to the right of Maria L. Taylor and Frank C. Taylor to require the trustee to convey the whole or any part of the premises at any time they might desire, upon their joint written request. The consideration for such conveyance was a matter resting solely between Taylor and his wife and the person to whom the conveyance should be made.

It appears that on the 27th day of April, 1897, the court entered an order giving' the Security Title and Trust Company, receiver for E. S. Dreyer & Co., leave to become a party defendant to the bill of complaint. On February 8, 1898, in default of an answer, the Security Title and Trust Company was defaulted. On February 14,1898, the court set aside the default and granted leave to plead, answer or demur to the bill. It is claimed on behalf of appellants that the court erred in permitting the Security Title and Trust Company to be made a party, and also erred in setting aside the default. This record contains no bill of exceptions or certificate of evidence, and we have no means of knowing what evidence was before the court when either of the orders complained of was entered, and in the absence of evidence it will be presumed that the facts before the court justified the orders entered.

We find no substantial error in the record, and the decree will be affirmed.

-r. ... , Decree affirmed.