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and the expenses attending his arrest and ed it back. He sat down to my desk and
off of his father's land; that shortly there- the execution and delivery of said instruafter he was arrested for poisoning the
poisoning the ment, as follows: "John was the man that water of a well from which the family with asked me to draw it. John came in, and whom his wife was staying took water; that Andy right after him. John says: 'Hello,' he was bound over to the grand jury and or something like that. I was busy. I turnsubsequently indicted for said offense; that ed around and saw who it was. John says: he applied to the defendant in error for 'I want you to draw a paper for me. Anfinancial aid to enable him to make a de- drew and I have had a trade. He has fense against said charge; that thereupon bought me out in my father's estate, and I Joel W. Hudson conveyed the premises in want a paper to show that it was in good question to the defendant in error, also about faith, that everything was all right, and the same time made his will, in which he that it was my own free will.' Says I, stated the plaintiff in error had received his | ‘John, what do you want me to put in it?' share of his estate, and in which the prem- 'Well,' says he, he has bought me out.' Says ises were devised by him to the defendant in I, 'Everything, personal and real?' and says error, and the plaintiff in error executed | he, ‘Yes, sir,' and I drew the paper. I read and delivered to the defendant in error an it to him, and then I handed it to John. I instrument in writing whereby he trans
do not know whether he read it or not. He ferred all his future expectancy in his took it and looked at it. I have known father's estate to the defendant in error, John W. Hudson 25 years. I know he can and the defendant in error paid to him, or write. I have had papers with his signafor his benefit, $500, which was used in the ture to them. He asked me to let him see payment of the debts of the plaintiff in error the paper. I handed it to him, and he hand
. indictment. Plaintiff in error testified that signed it, and after 'he had signed it I witthe $500 which he received from the defend- nessed it and handed it back to John, and ant in error was a loan, and that the title to John handed it to Andy, and that was all. said 40 acres of land, which it was under- They went out.” stood was to be his share of his father's es- Joel L. Hudson was the father of 11 tate, was placed in the defendant in error children. Shortly after the execution of the by his father as security for its repayment; instrument hereinbefore referred to he exand the defendant in error testified said sum ecuted a will, in which he gave to John W. was paid by him to the plaintiff in error in Hudson and two other sons $5 each and full for the purchase of the plaintiff in er- divided the remainder of his estate into nine ror's expectancy in his father's estate.
parts; two parts of which he gave to Andrew The questions here presented for decision 1. Hudson, and the other shares in equal are mainly questions of fact, and where, as parts to his other seven children. S sehere, the evidence is conflicting and the case quently he deeded each of seven of his was tried before the chancellor, who saw children 40 acres, and Andrew I. Hudson 80 and heard the witnesses testify, this court acres of his land. At the time the deeds will not reverse upon questions of fact unless were prepared, Joel L. Hudson stated to Mr. it is apparent the trial court has committed Ragan that Andy had bought John out; that palpable error. Gerber v. Gerber, 155 Ill. he did not owe John anything; and that 219, 40 N. E. 581 ; Keyes v. Kimmel, 186 Ill. John had cost him more than any boy he 109, 57 N. E. 851; Elmstedt V. Nicholsoni, had. In the will, and in conversations with 186 Ill. 580, 58 N. E. 381; Dowie v. Driscoll, people other than Ragan, Joel L. Hudson 203 Ill. 480, 68 N. E. 56. At the time stated John W. Hudson had received his Andrew I. Hudson testifies he bought his portion of his estate. It has been repeatedly brother's interest in his father's estate, he held that estates in expectancy may be the and his brother went to the office of Thorn
subject of contracts of sale. Parsons v. Ely, ton & Ragan, practicing lawyers in Shelby- 45 Ill. 232; Kershaw v. Kershaw, 102 Ill. ville, and had drawn the following instru- 307; Crum v. Sawyer, 132 Ill. 443, 24 N. E. ment in writing: "I, John W. Hudson, here- 956; Gary V. Newton, 201 Ill. 170, 66 N. E. by sell, assign, transfer and set over all 267. This record is voluminous and the tesof my right, title and interest, of every timony is conflicting, but we have read it character whatsoever, belonging to me or in with care, and from a consideration thereof, any way coming to me, or to which I am and the briefs filed by the respective parties, entitled in expectancy or otherwise, includ- are impressed with the conviction that the ing both personal and real estate, in and to transaction between John W. and Andrew I. my father, Joel L. Hudson's estate, to An- Hudson was an absolute sale of the expectdrew I. Hudson, for value received. This ancy of John W. Hudson in his father's es27th day of February, A. D. 1897. John W. tate to Andrew 1. Hudson, and not a mortHudson. Witness by W. H. Ragan.” This gage or pledge of his interest therein, and instrument was signed by John W. Hudson that the sale was fairly made and was supand witnessed by Mr. Ragan, and delivered ported by a valuable and ample consider
, by John W. Hudson to Andrew I. Hudson. ation; and that the chancellor properly susMr. Ragan testified upon the trial relative to tained the sale. In Gary v. Newton, supra, on page 180 of 201 Ill., on page 270 of 66 James W. Gibson, for plaintiff in error. N. E., it was said: “This court has held in Davidson & Isley, for defendants in error. a' number of cases that an estate in expectancy is an appropriate subject of con- WILKIN, J. At the April term, 1905, of tract, and that agreements by expectant heirs the circuit court of Jasper county, the dein regard to their future contingent estates, fendants in error, Osmer E. Graham, Thomwhen fairly made upon a valuable consider- as L. Graham, and Laurel C. Graham, by ·ation, will be enforced in equity.” Having | Martha E. Carey, their next friend, filed a reached the conclusion that the chancellor bill for partition against the plaintiff in properly held that the transaction amounted
error, Anna Jolly. The bill alleged that to a sale of the expectancy of John W. Hud- Charles H. Graham, the father of the comson to Andrew I. Hudson in his father's es- plainants, died intestate on June 19, 1902, tate, the other questions raised and discussed seised of certain real estate situated in Jasin the briefs become immaterial, and need per county; that he derived title to the same not here be considered.
on February 1, 1893, from his father, Thomas The decree of the circuit court will be Graham, and that on December 26, 1893, affirmed.
Charles H. Graham and his wife executed a Decree affirmed.
deed of conveyance therefor to his mother, Rebecca Graham, who on January 5, 1894,
conveyed the same to the defendant, Anna (222 Ill. 550)
Jolly; that both of said last-mentioned conJOLLY V. GRAHAM et al.
veyances were without consideration, were
merely colorable, and never intended to con(Supreme Court of Illinois. Oct. 23, 1906.)
vey any interest in said premises to the gran1. DOWER CONVEYANCE BY HUSBAND
tees; that subsequent to the execution of FRAUDULENT INTENT-VALIDITY AS TO HUS
said deeds Charles H. Graham remained in BAND AND HEIRS. Where a deed was made without consider
the possession of said real estate, received ation and for the purpose of defrauding the wife the rents and profits therefrom, and paid the of the male grantor, neither he nor his heirs
taxes thereon, and, if the said Anna Jolly and assignees could thereafter question its validity.
derived any interest in the same by virtue [Ed. Note.-For cases in point, see vol. 17,
of said deeds, she held it in trust for the Cent. Dig. Dower, SS 130-143.)
said Charles H. Graham and his heirs at 2. TRUSTS-FRAUDULENT CONVEYANCES.
law. It is also alleged that the said Anna Where a deed was executed by a husband Jolly executed a deed conveying said premand wife for the fraudulent purpose on the part
ises back to the said Charles H. Graham, of the husband of placing the title beyond the reach of the wife, and there was neither any
which deed has been lost; also that said agreement to reconvey to the husband nor prom- Charles H. Graham died seised of the premise in writing that the property should be held ises in question, and the complainants, as for the benefit of himself or his heirs, the con
his children and heirs, are the owners thereveyance did not create a trust for his benefit. [Ed. Note.-For cases in point, see vol. 47,
of in equal shares. The prayer is that said Cent. Dig. Trusts, § 95.]
deeds of conveyance from Charles H. Gra3. DEEDS-DELIVERY-EVIDENCE.
ham to Rebecca, and from the latter to the Evidence held insufficient to justify a find
defendant, Anna Jolly, be set aside as clouds ing that J. never executed and delivered a deed upon the title of the complainants, and for to certain property in controversy to complain
partition. The hearing was upon bill, anant's father in his lifetime. 4. SAME-DELIVERY.
swer, replication, and proofs, and the court Where deceased's father executed a deed to rendered a decree granting the prayer of the him which was not delivered during the father's bill, from which this writ of error has been lifetime, the grantor's widow could not make the
sued out. same effective as a conveyance by herself executing and delivering it after the grantor's
Thomas Graham, the father of Charles H. death,
and grandfather of the complainants below, [Ed. Note.-For cases in point, see vol. 16, was the owner of land in Jasper county, this Cent. Dig. Deeds, § 123.)
state, including that here in controversy. 5. ESTOPPEL - AGREEMENT OF
PARTIES On March 7, 1892, intending to divide his RIGTITS or MINORS.
lands between his children, he made certain Where in partition both parties relied on the validity of a deed executed to G. by his
deeds, among others one to his son Charles father, which was wholly ineffective as a con- H. for the north half of the northwest quarveyance of the title, G.'s minor heirs were not ter and the north half of the south half of precluded by any agreement or consent as to
the northwest quarter of section 31, townthe validity of such title from claiming their undivided interest in the lands of their grand- ship 8 north, range 9 east, in said county, father, through their father, nor from repudiat-being the same lands described in the coming the conveyance alleged in the bill.
plainants' bill. These deeds were never deError to Circuit Court, Jasper County; livered by Thomas Graham, but were reS. L. Dwight, Judge.
tained by him to the time of his death, Partition by Osmer E. Graham and others which occurred on the 15th day of July, · against Anna Jolly. From a decree in favor 1892. His wife, Rebecca Graham, did not of complainantı, defendant brings error. join him in the execution of the same, but Reversed and remanded.
after his death signed and attempted to de
liver the deeds to the respective grantees therein named, giving to Charles H. the one to him, as above stated. That deed described the homestead of the father, Thomas Graham, and after his death, and the delivery of the deed to Charles H. by his mother, he, together with her, Rebecca Graham, and his sister, Anna Jolly, the plaintiff in error, and his own wife, continued to reside thereon for a period of five years, during which time the children, the complainants in this bill, were born. Differences arose in the family, resulting in quarrels and disagreements between himself and wife and between her and the mother and sister, which finally resulted in the wife's abandonment of the home. The cause of their disagreement and the responsibility therefor need not now be discussed nor considered. It is very clear that the wife lived unhappily in the home, and complained that both her husband and his sister, Anna, mistreated her in such a way as to render her life miserable. About the time the deed of February 1, 1893, was delivered to Charles H. Graham, his wife left him and returned to her parents, and he became exceedingly anxious lest she should involve him in a suit for separate maintenance or for a divorce with alimony and the property in question be taken from him or incumbered, and he made earnest efforts to secure her return, procuring the aid of friends and neighbors to that end. He said he did not care for her, nor for her return, but did not want his property to fall into her hands nor the hands of her family. He succeeded in inducing her to return to him, and thereafter, by persua. sion, induced her to join him in a deed of conveyance to his mother, Rebecca. The evidence shows that he then declared, if he could get her to sign the deed so as to get title out of him, he did not care what took place. He used persuasive arguments to induce her to join him in that deed, telling her that his mother felt that the home place should be hers, and that she was without a home, and that in his opinion it would harmonize matters between them if the deed was made. The deed was executed on De cember 26, 1893, and the families continued to reside in the homestead; the title remaining in the mother until January 5, 1894, when she, with the consent of Charles H., conveyed it to the plaintiff in error. Thereafter, in the year 1895, Charles H. and his wife finally separated, and she obtained a divorce against him. The mother died January 22, 1900, and the premises continued to be occupied by Charles H. and his sister, the plaintiff in error, until the spring of 1902, when he went west and died June 19th of that year.
In this litigation the parties seem to concede that the legal title to the premises in controversy vested in Charles H. by virtue of the deed executed by his father, Thomas Graham, signed by his mother, and delivered, after the death of the grantor. On that concession it is insisted on behalf of the
plaintiff in error that the decree of the circuit court is erroneous because of the evidence failing to show that the deeds from Charles H. to Rebecca and from her to the plaintiff in error were merely colorable and not intended to convey the title to the grantees therein named; also that the evidence shows that those conveyances were made and procured to be made by Charles H. Graham, the father of the complainants below, for the fraudulent purpose of putting the property out of his hands to defeat the marital rights of his wife in case she should sue him for separate maintenance or for a divorce and alimony, which being true, a court of equity will not set aside those deeds on his appli. cation or that of the complainants, his heirs. We think the evidence clearly shows that the conveyances in question were executed without consideration. It does clearly appear that the intention, both of the grantor and grantees in those deeds, was to vest title in the latter. We are also convinced that the sole object and purpose of the grantor, Charles H. Graham, in making the deed to his mother and afterwards consenting that the property should be conveyed to his sister, was for the purpose of cheating and defrauding his wife. This being true, the conveyances became binding upon the grantor, Charles H., and all parties in privity with him. Having conveyed the property for the fraudulent purpose of defeating the rights of his wife, the law will leave him where he placed himself. Both his mouth and that of his heirs are closed to question the validity of the conveyances.
Miller v. Marckle, 21 Ill. 152; Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531; Jones v. Jones, 213 Ill. 228, 72 N. E. 695. The law will not permit a party to deliberately put his property out of his control for a fraudulent purpose, and then, through the intervention of a court of equity, regain the same after his fraudulent purpose has been accomplished. And this rule applies not only to him, but to his heirs and assigns. There is nothing in this record upon which to base the claim that by the deeds a trust relation was created between the parties. The purpose, as we have already said, was to place the title beyond the reach of the wife of the grantor, and no trust was or could be thereby created. There is not here even an agreement to reconvey to Charles H., nor is there any promise in writing that the property was to be held for his benefit or for the benefit of his heirs. The court erred in granting the relief prayed upon the ground that as between these parties the deeds sought to be set aside as clouds upon the complainants' title merely colorable, and did not vest the title in the plaintiff in error.
Nor are we able to agree with the learned chancellor that the testimony in this record justifies the conclusion that the plaintiff in
make no contest on that question. The rights of both parties on the bill and answer depended upon the validity of that title; but, in the view we take of the case, these minor complainants ought not to be precluded by any agreement or consent as to the validity of that title, but may base their claim to an undivided interest in the lands of their grandfather through their father, Charles H. Graham, and repudiate the deed of conveyance set up in the bill.
For the reasons stated the decree of the circuit court will be reversed, and the cause remanded to that court for further proceedings in conformity with the views here expressed.
Reversed and remanded.
error, Anna Jolly, did in fact deliver a deed to Charles H., during his lifetime, reconveying the premises to him. We have given careful consideration to this contention on behalf of the complainants below, and find the evidence, to say the least, so conflicting and unsatisfactory as to be wholly insufficient to authorize a decree divesting the plaintiff in error of her title. In the first place, there is an entire absence of proof of the existence of any such deed; that is, no witness testifies to having knowledge of the execution, acknowledgment, or delivery of any deed of conveyance from Anna Jolly to Charles H. Graham, or to having seen such a deed or having other personal knowledge of its existence. Two witnesses testify to declarations by the plaintiff in error to the effect that she made a deed back to her brother, but the testimony of these witnesses is vague and more or less uncertain, while she testifies positively that she never made such a statement, and as to one of the witnesses she is corroborated by her daughter, who was present at the time of the alleged statement. Several witnesses testified that Charles H. stated shortly prior to his going West that the title to the land was in his sister, Mrs. Jolly, and we think the clear preponderance of the evidence is that no attempt was made by the plaintiff in error to reconvey the land to Charles H., but that the legal title continued in her after his death and to the present time. There is abundant evidence in the record to the effect that he claimed to be the owner of the land, and that she admitted that fact; but the same evidence which proves these facts also proves that he had fraudulently placed the title in her for the purpose of defrauding his wife, as above stated.
Our conclusion is that, if the title became legally vested in Charles H. Graham, it passed by his deed to his mother and by her deed to the plaintiff in error, and that, because of his fraudulent purpose in so conveying the title, a court of equity cannot set aside and annul those deeds at the instance of the complainants, his heirs, and that the decree below cannot be sustained upon the ground that there was a reconveyance of the title to him by plaintiff in error, for the want of competent and sufficient evidence to sustain that contention. We are of the opinion, however, that the title to the lands here in controversy never became legally vested in the father of the complainants below, Charles H. Graham. The deed from his father to him was never delivered by the father, and it is too clear for argument that under the evidence in this case his widow, Rebecca Graham, could not legally deliver it after her husband's death. It is true counsel on either side say they do not wish to question the legality of the title in Charles H., and, manifestly, in the view which they take of the case, it was to their interest to
(222 Ill. 628) McCRANEY V. GLOS et al. (Supreme Court of Illinois. Oct. 23, 1906.) 1. TAXATION-TAX SALES-DELINQUENT LIST -CERTIFICATE OF COUNTY CLERK.
Under Hurd's Rev. St. 1905, c. 120, $ 194, providing that the county clerk shall carefully examine the delinquent list on which judgment for taxes has been rendered on the day advertised for sale, and shall make a certificate which shall be process on which all real property shall be sold for taxes, such a certificate, made on July 16th, when the sale was advertised to occur on August 10th, was insufficient, and the tax deed based thereon was void.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1281.] 2. SAME-FILING CERTIFICATE.
Under Revenue Law, 186 (Hurd's Rev. St. 1905, c. 120), requiring the certificate of the publication of a delinquent tax list to be filed as part of the record of the county court, a filing thereof by the county clerk is not a sufficient compliance with the law, though the offices of county clerk and clerk of the county court are filled by the same person, and, notwithstanding Hurd's Rev. St. 1905, p. 1946, C. 131, § 1, providing that the words "county clerk" shall be held to include "clerk of the county court," and the words “clerk of the county court" to include "county clerk," unless such construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the same statute. 3. EVIDENCE-DOCUMENTS-CODE.
Under Hurd's Rev. St. 1905, p. 1036, c. 51, § 10, providing that the printed statute books of the several states purporting to be printed under the authority of the states shall be evidence in all courts and places in this state of the acts therein contained, the Code of Iowa, stating on its title page that it was published by the authority of the state, is admissible in evidence of the laws of that state.
[Ed. Note.For cases in point, see vol. 20, Cent. Dig. Evidence, 8 1515.] 4. SAME - SECONDARY EVIDENCE - DEEDS –
CERTIFIED COPY SUFFICIENCY OF ACKNOWLEDGMENT.
Where there was evidence tending to show that a certificate of acknowledgment of a deed executed in Iowa was sufficient under the laws of that state, though insufficient under the law of Illinois, a certified copy of the deed was admissible in evidence to show title in the grantee on proof of loss of the original.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 667.]
Appeal from Superior Court, Cook County; Jesse Holdom, Judge.
Action by 'Elmer McCraney against Jacob Glos and another. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.
William Gibson and Arthur E. Beers, for appellant. Jacob Glos, pro se (John R. O'Connor, of counsel), for appellees.
VICKERS, J. Elmer McCraney filed a bill in the superior court of Cook county to cancel a tax deed as a cloud upon his title to lot 36 in block 16, in Taylor's Second addition to the town of South Chicago. The tax deed was issued to Jacob Glos under a sale for general taxes September 3, 1891. The court below dismissed the bill, and the complainant appeals to this court.
The tax deed involved is void, first, because the certificate of the clerk of the county court of Cook county 'was dated on the 16th day of July, 1891, when the sale was advertised to occur op. the 10th day of August, 1891. Section 194, c. 120, Hurd's Rev. St. 1905, provides that the county clerk shall carefully examine the delinquent list upon which judgment has been rendered, "on the day advertised for sale," and shall make a certificate, which "shall be the process on which all real property or any interest therein shall be sold for taxes.” This section of the stat. ute is mandatory, and a certificate made on any other day than the day advertised for sale is void. Kepley V. Scully, 185 Ill. 52, 57 N. E. 187; Kepley y. Fouke, 187 Ill. 162, 58 N. E. 303; Glos v. Gleason, 209 Ill. 517, 70 N. E. 1045; Glos v. Hanford, 212 Ill. 261, 72 N. E. 439; Glos v. Dyche, 214 Ill. 417, 73 N. E. 757. This tax deed is also void for the further reason that section 186 of the revenue law (Hurd's Rev. St. 1905, C. 120) was not complied with. This section requires that the published delinquent list shall be certified to by the "printer, publisher, or financial officer or agent of the newspaper publishing the list of delinquent lands and lots," and one copy of said delinquent list shall be presented by the collector to the county court at the time judgment is prayed, "and said copy shall be filed as a part of the records of said court.” The delinquent list in the proceeding at bar was filed by "Henry Wulff, county clerk." A filing by the county clerk is not a compliance with the law requiring the filing to be in the county court. "County clerk" and "clerk
” of the county court" are distinct offices although they may be held by the same person, and a filing by the former is not a compliance with a revenue statute which requires a filing in the county court. McChesney v. People, 174 Ill. 46, 50 N. E. 1110; Glos v. Woodard, 202 Ill. 480, 67 N. E. 3; Glos v. Hanford, supra. We are aware that the eighth clause of section 1 of chapter 131 (Hurd's Rev. St. 1905, p. 1946) on the subject of “Construction of Statutes," provides that
“the words 'county clerk' shall be held to include 'clerk of the county court,' and the words 'clerk of the county court to include 'county clerk,'” and that that rule of construction should prevail unless such construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the same statute”; but it is a general rule, and one well understood, that in a proceeding for the collection of taxes, where the owner may be deprived of his property, the requirements of the statute must be strictly followed. McChesney V. People, 148 Ill. 221, 35 N. E. 739. See, also, McChesney V. People, 174 Ill. 46, 50 N. E. 1110; Glos v. Hanford, supra.
To show title in appellant he relied on actual possession of the lot under a deed dated August 31, 1897, from Catherine Tromley and her husband, purporting to be acknowledged on the 14th day of September, 1897. The deed was executed in the state of Iowa and acknowledged before Henry S. McCaffery, notary public in Scott county, Iowa. An affidavit of the loss of the original deed having been filed, a certified copy was offered in evidence. The certificate of acknowledgment was not in compliance with the Illinois statutes, and an attempt was made by appellant to prove that the certificate of acknowledgment of the notary was in conformity with the laws of Iowa. There was no certificate of any clerk of a court of record of Iowa certifying that the acknowledgment was in accordance with the Iowa law. Appellant offered to introduce sections 27, 2942 and 2948 of the "Code of Iowa." These sections were found in a bound volume of printed laws obtained by appellant's counsel from the Law Institute. On the first page of the volume containing the sections offered was the following:
“Code of Iowa.
of the State of Iowa. Containing All the Laws of a General Nature Enacted by the Twenty-Sixth General Assembly at the Extra Session Which
Adjourned July 1, 1897.
Des Moines, Iowa.
The court below sustained the objection to the printed laws of Iowa, and there being no other proof that the acknowledgment was in accordance with the laws of Iowa the court struck out the evidence relating to the deed and dismissed the bill. In this ruling there is manifest error. Section 10 of chapter 51 (Hurd's Rev. St. 1905, p. 1036), entitled "Evidence and Depositions, provides: “The printed statute books of the United States, and of this state, and of the several states, of the territories and late territories of the United States, purporting