Myers v. Maher

Moran, J.

The bill in this case was filed to remove the lien of a judgment obtained by appellants against the husband of appellee, from a certain lot and the improvements thereon, as being a cloud on appellee’s title to the same.

The fact on which the relief asked is sought, are as follows: In October, 1882, William H. Maher, the husband of appellee, was the owner of a certain lot in Cossit’s addition to Chicago, and was owing to Margaret Collins, the mother of appellee $500, three hundred of which was secured by mortgage on said Cossit street lot, and two hundred of which was without security. Maher wished to receive more money on said lot, and applied to Margaret Collins to release her mortgage upon it, which she did upon condition Maher should agree that he would put the money which he owed to her inter a home for appellee. This he agreed to do, and the mortgage was thereupon released. In the summer of 1883, said Maher purchased the lot here involved, situated on Macal ester Place, in Chicago, for the sum of $1,200, and in May, 1884, he erected a building thereon which cost about $5,000, and which was divided into flats. Maher, before he bought said lot, told appellee to look at it, and asked her how she would like it there, but nothing was said about giving her the lot, and Maher took the title in his own name. He mortgaged the lot for $300, which money went into the improvement which he placed thereon. When the building was completed, in September, 1884, appellee, with her husband and children, moved into it, and occupied the middle flat, and she rented the upper and lower flats to tenants and always collected the rents herself, her husband having nothing to do with the renting, and she always thereafter paid the taxes on the property and the interest on the mortgage out of the rents.

Appellants obtained a judgment against said William H. Maher on December 28, 1885, for the sum of $610.72, on which execution was issued within a year. On January 12, 1886, a deed from William H. Maher to appellee, conveying the lot in question “ in consideration of love and affection, and the sum of $600,” was placed on record. The deed was dated and acknowledged October 7, 1885, but was never in the possession of appellee, and she knew nothing of it till she found it in her husband’s papers after his death. He died December 27, 1886. The Circuit Court granted the prayer of the bill and removed the judgment as a lien on appellee’s title.

To sustain this decree it is contended that appellee was in possession of the premises under an unrecorded deed, at the time appellant’s judgment was obtained. This contention can not be sustained. If it be assumed that such a possession as appellee had by living u pon the premises with her husband, would be notice to creditors and purchasers of an unrecorded title derived from him (a question on which we express no-opinion), it must be admitted that there could be no notice of title before the inception of the title itself. The deed could not take effect until it was delivered, and it is very clear that it was delivered at the earliest, when it was filed for record, some fourteen days after the lien of appellant’s j udgment attached.

It is contended, further, that there was a resulting trust in the property as it was purchased with money which was in fact appellee’s, the gift of her mother, and that her residence on the property and collecting the rents thereof was notice of her equitable title. If we were compelled to decide the case on this point we should have some difficulty in holding that a resulting trust arose in favor of appellee by the transaction as shown in this record, but it is unnecessary to labbr with the question, for the reason that if she had a resulting trust and such possession as she had is to be treated as notice of it, it would exist to the extent only to which she furnished the purchase money. The lot cost $1,200, and the most she can be found to have furnished is $700. On this assumption her equitable interest would extend to only seven-twelfths of the property. Five-twelfths would still be subject to the lien of the judgment, and hence the decree can not be sustained on this theory. 13 Ill. 233; Latham v. Henderson, 47 Ill. 185.

It is suggested that appellee’s husband had assumed an obligation in consideration of the release of the Margaret Collins mortgage to buy a home and put it in the name of appellee; that he did buy this lot and put her in possession of it as a homestead, and that this was evidence of his intention to perform the obligation; and that having put her in the actual possession, and having only the legal title in himself, he was capable of receiving a delivery of the deed as her agent from himself. We can not assent to this theory. It is fraught with too much danger to creditors to find favor in the courts. If appellee was seeking to assert a title against pure volunteers perhaps the doctrine would sustain her.

There is a prayer in the bill that if the judgment shall be found to be a lien, appellee may be subrogated to the prior liens on the property which she has discharged, and that her homestead be protected and her dower assigned, etc. There is no basis in the bill for granting such relief. Appellants have not attempted to sell under their execution, and when they shall, they will be compelled to proceed in accordance with the law with reference to the homesteads.

As it appears from the evidence that appellee has paid off mortgages upon the property with money given her by her mother, whenever the question arises she should be subrogated to the liens that she has discharged. It would seem just that she should look to the pz-operty to be reimbzzrsed for such payments, and that her claims in that respect would take pz-ecedence of liens which accrued subsequently to those which she discharged with money arising from other sources than the rents and profits of the property in question.

The decree of the Circuit Court will be reversed with directions to the Circuit Court to dismiss appellee’s bill without prejudice, unless appellee shall elect to apply to the Circuit Court for a sale of the property and a distribution of the proceeds on the basis of giving; precedence to the liens to which she may be found entitled to be subrogated, and to the right of homestead under the statute.

Reversed and remanded with directions.