Johnston v. Fletcher , 1889 Ill. App. LEXIS 183 ( 1889 )

Upton, P. J.

The allegations of the bill are fully sustained by the evidence in every particular, and in addition thereto the evidence shows that oh the next day after Johnston obtained a deed of the land from Ely, Johnston went to the county seat and dismissed the chancery proceeding set out in the bill of complaint without consultation with the solicitors who were conducting the suit in the interest of Groom.

It seems that Groom was residing upon this land in the year 1881, with his family, and his cows, horses, hogs, and having other personal estate with which he was supporting his family comfortably, keeping them together. But as soon as Johnston got fairly invested with the title to the land he proceeds to take possession of all Groom’s personal estate, even the hog which was then being prepared for the family use for food; sells the same at public auction, scatters the Groom family, and notwithstanding Johnston admits that the land was worth much more than what he paid to redeem it, at least $700 or $800 more, and the personal property sold at auction was appraised and estimated as to the value of some $562.50, all of which Johnston had in his hands and possession, he removed the old man Groom to the county poor house as a pauper. There does not appear to have been the slightest necessity or excuse even, for this heartless conduct. A more culpable and apparently fraudulent transaction can scarcely be imagined, than is shown by the facts in this record. The law is too well established and settled to require note or comment, further than to say, that trustees are never allowed to deal in the property intrusted to their care, or to make a profit therefrom. Whatever use is made of it by the trustee, if profit is derived, it is for the benefit of the beneficiary, and the trustee must account for it, no matter what form the transaction may assume.

While the trust continues unperformed, the trustee will not be permitted to purchase the property as a stranger might do, and in the dealings of the trustee with the property held in trust the burden rests upon the trustee to show the fairness of such dealings. Moneys advanced by a trustee to purchase in an outstanding title, will be treated in equity as so much advanced for the benefit of the beneficiary, and not for the benefit of the trustee, giving the trustee a lien on the property until reimbursed for the advancement. Ward v. Armstrong, 84 Ill. 151; King v. Cushman, 41 Ill. 31.

The decree of the court belpw was eminently just and proper1, and could not upon any principle of justice and equity have been different, and it is affirmed in this court.

Deoree affirmed.