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off of his father's land; that shortly thereafter he was arrested for poisoning the poisoning the water of a well from which the family with whom his wife was staying took water; that he was bound over to the grand jury and subsequently indicted for said offense; that he applied to the defendant in error for financial aid to enable him to make a defense against said charge; that thereupon Joel W. Hudson conveyed the premises in question to the defendant in error, also about the same time made his will, in which he stated the plaintiff in error had received his share of his estate, and in which the premises were devised by him to the defendant in error, and the plaintiff in error executed and delivered to the defendant in error an instrument in writing whereby he transferred all his future expectancy in his father's estate to the defendant in error, and the defendant in error paid to him, or for his benefit, $500, which was used in the payment of the debts of the plaintiff in error and the expenses attending his arrest and indictment. Plaintiff in error testified that the $500 which he received from the defendant in error was a loan, and that the title to said 40 acres of land; which it was understood was to be his share of his father's estate, was placed in the defendant in error by his father as security for its repayment; and the defendant in error testified said sum was paid by him to the plaintiff in error in full for the purchase of the plaintiff in error's expectancy in his father's estate.
The questions here presented for decision are mainly questions of fact, and where, as here, the evidence is conflicting and the case was tried before the chancellor, who saw and heard the witnesses testify, this court will not reverse upon questions of fact unless it is apparent the trial court has committed palpable error. Gerber v. Gerber, 155 Ill. 219, 40 N. E. 581; Keyes v. Kimmel, 186 Ill. 109, 57 N. E. 851; Elmstedt v. Nicholson, 186 Ill. 580, 58 N. E. 381; Dowie v. Driscoll, 203 Ill. 480. 68 N. E. 56. At the time Andrew I. Hudson testifies he bought his brother's interest in his father's estate, he and his brother went to the office of Thornton & Ragan, practicing lawyers in Shelbyville, and had drawn the following instrument in writing: "I, John W. Hudson, hereby sell, assign, transfer and set over all of my right, title and interest, of every character whatsoever, belonging to me or in any way coming to me, or to which I am entitled in expectancy or otherwise, including both personal and real estate, in and to my father, Joel L. Hudson's estate, to Andrew I. Hudson, for value received. This '27th day of February, A. D. 1897. John W. Hudson. Witness by W. H. Ragan." This instrument was signed by John W. Hudson and witnessed by Mr. Ragan, and delivered by John W. Hudson to Andrew I. Hudson. Mr. Ragan testified upon the trial relative to
John came in, and John says: 'Hello,' I was busy. I turnJohn says:
the execution and delivery of said instrument, as follows: "John was the man that asked me to draw it. Andy right after him. or something like that. ed around and saw who it was. 'I want you to draw a paper for me. Andrew and I have had a trade. He has bought me out in my father's estate, and I want a paper to show that it was in good faith, that everything was all right, and that it was my own free will.' Says I, 'John, what do you want me to put in it?' 'Well,' says he, 'he has bought me out.' Says I, 'Everything, personal and real?' and says he, 'Yes, sir,' and I drew the paper. I read it to him, and then I handed it to John. I do not know whether he read it or not. He took it and looked at it. I have known John W. Hudson 25 years. I know he can write. I have had papers with his signature to them. He asked me to let him see the paper. I handed it to him, and he handed it back. He sat down to my desk and signed it, and after he had signed it I witnessed it and handed it back to John, and John handed it to Andy, and that was all. They went out."
Joel L. Hudson was the father of 11 children. Shortly after the execution of the instrument hereinbefore referred to he executed a will, in which he gave to John W. Hudson and two other sons $5 each and divided the remainder of his estate into nine parts; two parts of which he gave to Andrew I. Hudson, and the other shares in equal parts to his other seven children. Subsequently he deeded each of seven of his children 40 acres, and Andrew I. Hudson 80 acres of his land. At the time the deeds were prepared, Joel L. Hudson stated to Mr. Ragan that Andy had bought John out; that he did not owe John anything; and that John had cost him more than any boy he had. In the will, and in conversations with people other than Ragan, Joel L. Hudson stated John W. Hudson had received his portion of his estate. portion of his estate. It has been repeatedly held that estates in expectancy may be the subject of contracts of sale. Parsons v. Ely,
45 Ill. 232; Kershaw v. Kershaw, 102 Ill. 307; Crum v. Sawyer, 132 Ill. 443, 24 N. E. 956; Gary v. Newton, 201 Ill. 170, 66 N. E. 267. This record is voluminous and the testimony is conflicting, but we have read it with care, and from a consideration thereof, and the briefs filed by the respective parties, are impressed with the conviction that the transaction between John W. and Andrew I. Hudson was an absolute sale of the expectancy of John W. Hudson in his father's estate to Andrew I. Hudson, and not a mortgage or pledge of his interest therein, and that the sale was fairly made and was supported by a valuable and ample consideration; and that the chancellor properly sustained the sale. In Gary v. Newton, supra,.
on page 180 of 201 Ill., on page 270 of 66 N. E., it was said: "This court has held in a number of cases that an estate in expectancy is an appropriate subject of contract, and that agreements by expectant heirs in regard to their future contingent estates, when fairly made upon a valuable consideration, will be enforced in equity." Having reached the conclusion that the chancellor properly held that the transaction amounted to a sale of the expectancy of John W. Hudson to Andrew I. Hudson in his father's estate, the other questions raised and discussed in the briefs become immaterial, and need not here be considered.
The decree of the circuit court will be affirmed.
(222 III. 550)
JOLLY v. GRAHAM et al.
(Supreme Court of Illinois. Oct. 23, 1906.) 1. DOWER CONVEYANCE BY HUSBAND FRAUDULENT INTENT-VALIDITY AS TO HUSBAND AND HEIRS.
Where a deed was made without consideration and for the purpose of defrauding the wife of the male grantor, neither he nor his heirs and assignees could thereafter question its validity.
[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dower, §§ 130-143.]
2. TRUSTS-FRAUDULENT CONVEYANCES.
Where a deed was executed by a husband and wife for the fraudulent purpose on the part of the husband of placing the title beyond the reach of the wife, and there was neither any agreement to reconvey to the husband nor promise in writing that the property should be held for the benefit of himself or his heirs, the conveyance did not create a trust for his benefit.
[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, § 95.]
Evidence held insufficient to justify a finding that J. never executed and delivered a deed to certain property in controversy to complainant's father in his lifetime.
Where in partition both parties relied on the validity of a deed executed to G. by his father, which was wholly ineffective as a conveyance of the title, G.'s minor heirs were not precluded by any agreement or consent as to the validity of such title from claiming their undivided interest in the lands of their grandfather, through their father, nor from repudiating the conveyance alleged in the bill.
Error to Circuit Court, Jasper County; S. L. Dwight, Judge.
Partition by Osmer E. Graham and others against Anna Jolly. From a decree in favor of complainants, defendant brings error. Reversed and remanded.
James W. Gibson, for plaintiff in error. Davidson & Isley, for defendants in error.
WILKIN, J. At the April term, 1905, of the circuit court of Jasper county, the defendants in error, Osmer E. Graham, Thomas L. Graham, and Laurel C. Graham, by Martha E. Carey, their next friend, filed a bill for partition against the plaintiff in error, Anna Jolly. The bill alleged that Charles H. Graham, the father of the complainants, died intestate on June 19, 1902, seised of certain real estate situated in Jasper county; that he derived title to the same on February 1, 1893, from his father, Thomas Graham, and that on December 26, 1893, Charles H. Graham and his wife executed a deed of conveyance therefor to his mother, Rebecca Graham, who on January 5, 1894, conveyed the same to the defendant, Anna Jolly; that both of said last-mentioned conveyances were without consideration, were merely colorable, and never intended to convey any interest in said premises to the grantees; that subsequent to the execution of said deeds Charles H. Graham remained in the possession of said real estate, received the rents and profits therefrom, and paid the taxes thereon, and, if the said Anna Jolly derived any interest in the same by virtue of said deeds, she held it in trust for the said Charles H. Graham and his heirs at law. It is also alleged that the said Anna Jolly executed a deed conveying said premises back to the said Charles H. Graham, which deed has been lost; also that said Charles H. Graham died seised of the premises in question, and the complainants, as his children and heirs, are the owners thereof in equal shares. The prayer is that said deeds of conveyance from Charles H. Graham to Rebecca, and from the latter to the defendant, Anna Jolly, be set aside as clouds upon the title of the complainants, and for partition. The hearing was upon bill, answer, replication, and proofs, and the court rendered a decree granting the prayer of the bill, from which this writ of error has been sued out.
Thomas Graham, the father of Charles H. and grandfather of the complainants below, was the owner of land in Jasper county, this state, including that here in controversy. On March 7, 1892, intending to divide his lands between his children, he made certain deeds, among others one to his son Charles H. for the north half of the northwest quarter and the north half of the south half of the northwest quarter of section 31, township 8 north, range 9 east, in said county, being the same lands described in the complainants' bill. These deeds were never delivered by Thomas Graham, but were retained by him to the time of his death, which occurred on the 15th day of July, 1892. His wife, Rebecca Graham, did not join him in the execution of the same, but 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 December 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 application 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 were 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
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
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.
(222 I11. 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, § 1515.]
4. SAME SECONDARY EVIDENCE CERTIFIED COPY
DEEDS SUFFICIENCY OF AC
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 on 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 statute 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 v. Fouke, 187 III. 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. Annotated.
of the State of Iowa.
Containing All the Laws of a General Nature
F. R. Conway, State Printer, 1897."
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