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time, but shall, at the time of repayment, withdraw the shares upon which the loan was made.' 'Art. 8. Any stockholder may withdraw from the association upon giving thirty days' notice of his or her intention so to do, when he or she shall be entitled to receive the amount paid in by him,'-and shows that among its by-laws is the following: 'Art. 6. Any stockholder withdrawing from the association shall be entitled to receive the amount paid in by him or her, with five per cent. per annum, less proper fines and charges, provided no interest shall be paid until six months' payment shall have been made.'"

E. I. Hampton, for appellant. Sherman, Tunnicliff & Gumbart, for appellees.

PER CURIAM. In deciding this case, the appellate court delivered the following opinion:

"The constitution and by-laws of the association, being authorized by the statute under which it was created, entered into and became a part of the contract which it made with the plaintiff in error, one of its members, which is the subject of inquiry in this case; and under them it seems plain to us that he is not entitled to have the $122 (alleged profits) credited to his loan, in addition to the withdrawal value of his shares of stock, upon the settlement of his loan, and the voluntary withdrawal of his stock before it matured according to the plan of the association, where members continue to hold their stock until it matures in the ordinary way. Plaintiff in error, however, claims he is entitled to said $122 under paragraph 83b (section 6c) of chapter 32 of our statute, which is as follows: 'Any member who shall have obtained a loan or advance on his shares, and who shall have given real estate as security, may, at any time, upon giving thirty days' previous notice in writing, repay the same. On settlement such member shall be charged with the full amount of such loan or advance, together with any and all arrearages due thereon, or on the shares pledged, or appertaining to the security given, and shall thereupon be allowed as a credit the withdrawal value of the shares pledged as security, together with such other credits as may be returnable on account thereof, and the balance shall be received by the association in full settlement and discharge of such loan or advance.' But we think that that section must be construed in connection with preceding section 6b of the same act, which is as follows: 'Any member desiring to withdraw installment shares from any association doing business in this state, shall have power to do so by giving thirty days' notice of such intention to withdraw, when such member shall be entitled to receive the full amount of dues paid in on the shares sought to be withdrawn, and such interest thereon

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as fixed in the by-laws, and in addition thereto such proportion of the profits apportioned thereto as the board of directors may, from time to time, by resolution, determine, less such charges of the character enumerated in this act as may be due thereon: provided, that the amount of such interest or profits paid on withdrawals shall not exceed the actual rate of earnings of the association, * * #9 and with paragraph 82 (section 5) of the same chapter, which confers the corporate powers of such association upon its board of directors. And when effect is given to all, the conclusion naturally to be drawn therefrom is that until the board of directors shall, from time to time, by resolution, apportion to all the shares of stock the proportion of profits which have been actually earned, those members who voluntarily withdraw theirs are not entitled to any of such profits, for they are only entitled to such, under the statute, after the directors have so declared.

"Under our statute, homestead loan associations are organized to enable their members to borrow money from them upon their shares of stock and real estate security, and to repay it in premiums; dues and interest to be paid in small installments, which in time may make profits which amount to enough to cancel the loan. Then the stock is declared matured, and the loan canceled. But the statute makes provision by which a member may voluntarily withdraw his stock and pay off his loan before the stock matures in the ordinary way, and in that case it provides that such withdrawing member shall be charged with the full amount of his loan, together with all arrearages due thereon, or on the shares pledged, or appertaining to the security given, and shall thereupon be allowed as a credit the withdrawal value of the shares pledged as security, 'together with such credits as may be returnable on account thereof, and the balance shall be received by the association in full settlement and discharge of such loan.' And in order to understand what is meant by the words 'such other credits as may be returnable on account thereof,' we must look to the statute itself; and, looking there, we find section 6b declares that the shares of voluntary withdrawing members are entitled to 'such proportion of the profits apportioned thereto as the board of directors may, from time to time, by resolution, determine.' This construction of the statute, in our opinion, is not only fair to the members who withdraw, but does justice to those who remain until their shares are matured, and to whom the profits, if any, justly belong, for they must bear all losses which may and do occur, and also gives to the language used by the legislature the meaning which it fairly conveys when interpreted to effect the purposes for which such associations are organized; and it recognizes that the management of their corporate powers is with the

board of directors, where the statute expressly places it. The bill, as amended, was doubtless drawn in order to have the court declare that the action of the secretary of the association, approved by the stockholders upon the report of its board of auditors that the shares of stock which plaintiff in error held were on July 31, 1900, entitled to a credit of $122 for their portion of the net profits which the association had earned while he held them, should have the same effect as if the board of directors had, by resolution, so determined; but to so hold would be to declare that the secretary and stockholders could exercise the corporate powers of the association, when the statute expressly confers them only upon the board of directors.

"The amended bill, on its face, showed that plaintiff in error still owed $122 upon the loan he had made from the association, and for that reason he was not entitled to have the deed of trust securing it canceled and satisfied of record; and therefore the circuit court properly sustained the demurrer thereto, and, as he stood by it, the decree dismissing it at his costs was proper, also, and will be affirmed."

The appellate court, to which an appeal was taken from the decree of the circuit court sustaining the demurrer and dismissing the bill, has affirmed said decree. We concur in such action, and in the foregoing views expressed in support thereof. Accordingly the judgment of the appellate court is affirmed. Judgment affirmed.

(197 III. 45)

PALMER v. RIDDLE et al. (Supreme Court of Illinois. June 19, 1902.) HOMESTEAD - ABANDONMENT — EVIDENCEEXECUTION SALE-FAILURE TO SET OFF HOMESTEAD-EJECTMENT.

1. The owner of a homestead rented it for three years on a verbal understanding that the lessee would surrender the premises if the owner should desire to return to the state before the expiration of the lease. The owner testified that she refused to rent for a longer time because she might return before the expiration of a longer period. The lessee testified that she said she stated she would not rent for a longer time, as she was going away for her husband's health. A neighbor testified she said that if her husband's health did not improve they would come back. Held, that the evidence showed no intent to abandon the homestead.

2. A sale, on execution, of homestead premises is void at law if the homestead is not properly set off according to the statute.

3. Where land, a portion of which is the owner's homestead, is sold under execution en masse, no homestead being set off, the sale being void for failure to set off the homestead, the purchaser cannot recover in ejectment the portion in excess of the homestead.

Error to circuit court, De Witt county; W. G. Cochran, Judge.

Action by F. M. Palmer against Nehemiah Riddle and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Charles R. Adair and Tipton & Tipton, for plaintiff in error. Warner & Lemon, for defendants in error.

HAND, J. This is an action of ejectment brought by the plaintiff in error against the defendants in error in the circuit court of De Witt county to recover the possession of a tract of land located in said county described as 80 acres off the south side of the S. W. 1/4 of section 6, township 20 N., range 2 E., of the third principal meridian. The declaration, as amended, contains six counts. In the first count the plaintiff in error claims title in fee, and in the remaining five an estate for the life of Marietta Brown. The fifth count charges the unlawful withholding of the east half, and the sixth the unlawful withholding of the west half, of said premises. The general issue was filed, and a trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the defendants in error, and a writ of error has been sued out from this court to review said judgment.

This case was before this court at a former term, and is reported in 180 Ill. 461, 54 N. E. 227. The title of plaintiff in error is fully stated in that case, and the same evidence is in the present record, except plaintiff in error offered no evidence of the tax title under which on the former trial he claimed title in fee to the premises. His claim of title is under the deeds from the sheriff set forth in the opinion of the court, and it is stipulated in the record, as before, that Mrs. Brown was vested with a life estate in the premises, and the remainder limited by deed to the heirs of her body.

The

The defendant Marietta Brown claimed the land in question as a homestead. testimony showed that Mrs. Brown and her family occupied this land as a home from 1871 to 1881, when she rented the farm, and with her family moved to Wapella, where they lived until 1888, when they returned to the farm, where they made their home until 1895; that in February of that year she rented the farm for three years to her codefendant Riddle, with a verbal understanding that he would surrender the premises should she desire to return to Illinois before the expiration of the lease, which lease was afterwards renewed, and with her family she moved to the state of Iowa, where they resided until 1899, without acquiring a permanent home elsewhere, when they returned to the farm, where they now reside. At the time of their removal to Iowa, Miles B. Brown, the husband of Marietta Brown, was in poor health, having been an invalid since his return from the army, where he served during the war of the Rebellion. They had a son residing in Iowa, and the evidence tended to show that when Mrs. Brown rented the farm in the spring of 1895, and with her family moved to the state of Iowa, she went there mainly with a view

to improve, if possible, her husband's health by a change of climate, with the expectation and understanding that if he was not benefited by the change she would return to Illinois, and again occupy her homestead. Mrs. Brown testified that she refused to rent the farm for a period of five years to Mr. Riddle prior to her departure for Iowa, and that as the reason for such refusal she stated to him, "I might come back in that time." Riddle testified that at the time the lease was drawn Mrs. Brown said she would not let him have the place for a longer period of time than three years, "on account she might want to come back; did not know when she might want to come back; she said she wanted to go to Iowa for the old man's health and to get more land for the boys." Norval, the scrivener who prepared the lease, testified that Mrs. Brown refused to lease the property for longer than three years, "for she might want to come back before five years." Mrs. Burwell, a neighbor of the Browns, testified that Mrs. Brown said "they were going for Mr. Brown's health; that if his health improved they might rent the farm right along; if it did not, they would come back." John S. Brown, a son, testified that his mother said if his father's health got better "they would stay in Iowa; if it did not, they would return."

It is well settled that where a person leaves his residence with only a conditional intention of acquiring a residence elsewhere he does not lose his residence so long as his intention remains conditional. Potts v. Davenport, 79 Ill. 455; Wilkins v. Marshall, 80 Ill. 74; Hayes v. Hayes, 74 Ill. 312; Smith v. People, 44 Ill. 16; City of Beardstown v. City of Virginia, 81 Ill. 541; Imhoff v. Lipe, 162 III. 282, 44 N. E. 493. We think the evidence in this record amply sufficient to authorize a finding that there was no intention to abandon the homestead, and sustains the verdict.

The improvements are located upon the west 40 of said 80, and it is stipulated that said land is worth $80 per acre. It is urged by the plaintiff in error that if he is not entitled to recover the possession of the entire 80 he is at least entitled to recover the east 40, as the homestead of Mrs. Brown should be confined to the 40 acres upon which the buildings and other improvements are located, as it appears from the evidence that that 40 is worth more than $1,000. The sale was made en masse. A sale, on execution, of homestead premises is void at law if the homestead is not properly set off according to the statute, and in an action of ejectment a recovery cannot be had of the portion of the premises sold which is in excess of the homestead. Hartwell v. McDonald, 69 Ill. 293; Stevens v. Hollingsworth, 74 Ill. 202; Nichols v. Spremont, 111 Ill. 631; Conklin v. Foster, 57 Ill. 104; Barrett v. Wilson, 102 III. 302.

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1. Where, fearing that his lands might be seized by a creditor, a landowner executed deeds to his daughter with intent to devest his title, and recorded the deed, the daughter having knowledge of his intent, there was a conclusive presumption of delivery.1

2. Where it is orally agreed between a grantor and grantee that title shall be held for the grantor in fraud of his creditors, equity will not compel a reconveyance at the suit of the grantor.

Appeal from city court of Alton; Silas Cook, Judge.

Suit by Michael Huber against Louisa Brady and others. From a decree for complainant, defendants appeal. Reversed.

Dunnegan & Leverett, for appellants. John G. Irwin and B. J. O'Neil, for appellee.

BOGGS, J. This was a bill in equity filed by appellee, wherein it was prayed that upon final hearing a decree be entered vacating and declaring null and void a certain deed executed by the appellee, dated on the 18th day of March, 1899, purporting to convey to his daughter Louisa (now Louisa Brady), one of the appellants, a certain parcel of land in Charles Howard's addition to the city of Alton, 20 feet in width, fronting on the north side of Seventh street, thence extending north 100 feet; or, in the alternative, for a decree creating a lien on said premises to provide for the comfort, support, and medical care of the appellee, the complainant, during his natural life. On a hearing upon bill, answer, and replication, a decree was entered ordering and decreeing that the deed for the property in the bill mentioned be so reformed and corrected as to reserve to the appellee, the grantor, the sole and exclusive possession, use, and enjoyment of the premises for and during the time of his natural life, upon condition that the said grantor pay all taxes and assessments against the same during his life, and keep the same in proper repair, and do not suffer or permit waste to said premises while so held by him for life.

It appeared from the testimony that on the said 18th day of March, 1899, the appellee, a widower, and the appellant, his daughter (now Louisa Brady), lived together in a dwelling house on the premises in Alton, de

1 See Deeds, vol. 16, Cent. Dig. §§ 136-138, 580.

scribed in the deed sought to be reformed by to create a trust that equity would enforce,

the bill. The father was the owner of the premises in Alton, and also of a tract of land in St. Charles county, Mo. He was involved in some manner of litigation, the nature whereof is not disclosed. He desired to put the title to his property where it would not be endangered by an adverse determination of the litigation. He executed two deeds to his daughter, one conveying to her the premises in the city of Alton, and the other the lands in Missouri. The theory upon which the appellee asks an affirmance of the decree is that the appellant Louisa Brady, by arous ing the fears of the appellee as to the possible adverse result of the litigation in which he was involved, and by repeated importunities, induced the appellee to execute the deeds to her after many repeated promises upon her part to reconvey the property to him at any time upon his request, and that the appellee did not deliver to said appellant either of the deeds, but that both deeds, though recorded, remained in his possession until the 26th day of July in the same year; that the appellant Louisa Brady was about to be married to her coappellant John Brady, and the appellee on said 26th day of July demanded that she should reconvey both pieces of property to him; that she refused, but finally said she would reconvey to him the Missouri land but not the Alton property, but she told him that the house should be his as long as he lived; that appellant Louisa then executed a deed reconveying to the appellee the land in Missouri, and he accepted it with the understanding the Alton property was to be his as long as he lived; that with this understanding he then delivered to her the deed for the property in Alton; that on the day following this his daughter Louisa and said John Brady were married, and on her application appellee permitted her and her husband to take up their home with him in the dwelling house on the Alton property, and that they entered into an agreement that she was to board him and take care of him as long as he lived, in consideration of the use of the premises; that after complying with this promise and understanding for about a year and a half appellant and her husband separated, and she returned to him the deed for the Alton property; that later the daughter and her husband became reconciled, and took up their home elsewhere; that appellee rented the house and Alton property to the appellant Morgenroth, and the appellant Louisa notided the said Morgenroth to quit and give up possession to her.

The argument of counsel for the appellee is the decree should be upheld on the ground that the execution of the deed was procured by fraud and imposition, and the delivery thereof procured on a parol promise to hold the land in trust for the grantor, and that chancery will lend its aid to enforce the trust. Counsel do not contend that a mere breach of the promise to reconvey is sufficient

but insist that the fraud alleged to have been exerted in procuring the deed, in connection with the promise and breach thereof, warrants equitable interference.

The bill does not charge that the appellee was induced to sign and have the deeds recorded by any species of fraud or imposition. The answer avers the deeds were delivered when made, denies the alleged oral contract was made, but does not plead the statute of frauds. We think it must be held the deeds were delivered at the time of the making thereof. The evidence shows two deeds from the father to the daughter were executed at the same time, one conveying to her the property here involved,-the Alton property, in Madison county, Ill.,-and the other the land in the county of St. Charles, in the state of Missouri; that the appellee, her father, sent the appellant, the daughter, with the deed to the Missouri land to St. Charles, to be filed for record, and that he took the other deed to Edwardsville, the county seat of Madison county, and filed it with the recorder to be recorded. Both deeds were duly recorded. The appellee testified the deeds were both returned to him by mail by the respective recording officers, and the appellant, his daughter, swears they were sent to her by such officers. The execution and recording of the deed here involved, by the appellee, raise the presumption, in law, that he intended to devest himself of title, and unless such presumption is rebutted it must be held the deeds were delivered. 9 Am. & Eng. Enc. Law (2d Ed.) p. 159, and many cases decided in this court, cited in note 4. In Insurance Co. v. Campbell, 95 Ill. 267, 35 Am. Rep. 166, we said (page 284, 95 Ill., and page 166, 35 Am. Rep.): "The mere act of recording, alone, as we have seen, is but prima facie evidence of a delivery, and liable to be rebutted; and it is successfully rebutted, as all the cases agree, when it is shown that the deed was not in the nature of a family settlement or of a gift to a minor (as to which hereafter), but is intended to confer no benefit upon the grantee, and its execution and recording are wholly unknown to him until after the death of the grantor." In Weber v. Christen, 121 Ill..91, 11 N. E. 893, 2 Am. St. Rep. 68, we said (page 97, 121 Ill., page 896, 11 N. E., and page 68, 2 Am. St. Rep.): "We think, in the case of an adult grantee, the acknowledging and recording of the deed without his knowledge or consent does not, of itself, according to the weight of authority, amount to a delivery." In Sullivan v. Eddy, 154 Ill. 199, 40 N. E. 482, we held the presumption of delivery arising from the registration of a deed had been successfully rebutted by proof, among other things, that the grantee was ignorant of the execution and recording of the deed, and claimed nothing under it.

Acceptance by the grantee is a constituent element of the delivery of a deed, and

it will be observed that in all the cases cited the absence of knowledge on the part of the grantee has been noted as a circumstance tending to rebut the presumption of delivery which arises from the registration of the deed. Acceptance may be presumed, but if the grantee i sui juris the presumption of acceptance does not necessarily arise, and in such cases it may be shown, in rebuttal of the presumption of delivery which arises from registration of the deed, that the execution and recording of the deed were acts of the grantor alone, unknown to, and unauthorized by, the grantee. But here no question of acceptance can arise. It appeared without dispute the appellee, influenced by the fear that his lands might be seized by a creditor, executed a conveyance thereof to his daughter with intent to devest himself of title so that it would be beyond reach of his creditors; that the deed imposed no burden on the grantee, but was without condition or qualification and was beneficial to her; that the daughter, the grantee, well knew of the execution of the deeds, and consented that the conveyances should be made to her; and that the grantor, with the knowledge and consent of the grantee, placed the deed upon the public records, with the intent it should be deemed and taken by his creditors as a completed and effective conveyance of the premises. Under such circumstances, the grantor must be deemed concluded by the presumption of delivery which arises from the recording of the deed. Walton v. Burton, 107 Ill. 54; Thompson v. Dearborn, Id. 87; Moore v. Giles, 49 Conn. 570. Manual delivery by the grantor to the grantee is not essential. Rivard v. Walker, 39 Ill. 413; Rodemeier v. Brown, 169 Ill. 347, 48 N. E. 468, 61 Am. St. Rep. 176.

It is a rule having universal recognition that, though creditors of a fraudulent grantor may invoke the aid of the courts to have a conveyance made for the purpose of hindering and delaying them in the collection of their demands declared inoperative as against their rights and interests, the law will not provide a remedy which either of the guilty parties, if in pari delicto, can avail of against the other, either to disturb or enforce the conveyance. A court of equity will not lend its aid to the grantor to cancel the deed, or reform it so as to show the verbal contract of the grantee, or to enforce any agreement to reconvey, or declare that any trust or confidence has grown out of the conveyance. McElroy v. Hiner, 133 Ill. 156, 24 N. E. 435; 14 Am. & Eng. Enc. Law, 278. Nor will a court of law entertain a legal action brought by the fraudulent grantee against the grantor to recover the possession of the property so fraudulently conveyed. Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531. The law, in such cases, refuses to aid either party, but leaves them where it finds them.

Counsel for appellee cite Lantry v. Lantry,

51 Ill. 458, 2 Am. Rep. 310; Biggins v. Biggins, 133 Ill. 211, 24 N. E. 516; Gruhn v. Richardson, 128 Ill. 178, 21 N. E. 18, and Williams v. Williams, 180 Ill. 361, 54 N. E. 229, in support of the proposition announced in that behalf, that "where the party to whom a deed absolute is made obtains the execution and delivery thereof to himself by fraud and imposition upon the grantor, on a parol promise to hold the land in trust for the grantor, chancery will in such case lend its aid to enforce the trust." The doctrine taught in the cases cited is that though the statute of frauds requires that all declarations or creations of trust shall be manifested in writing, yet where a grantee has obtained the execution of the deed by fraud and imposition upon the grantor a parol promise to hold the land in trust will, because of the fraud and imposition so practiced on the grantor, be enforced in chancery. This rule is applicable to conveyances made by the grantor in trust for lawful purposes, not to cases, such as the one at bar, where the parol promise or undertaking is to hold the title for the grantor in order that his creditors may not be able to have it applied to their demands, or to reconvey to him when that illegal purpose has been accomplished.

There is no foundation on which to base an insistence the parties to the conveyance under consideration were not in pari delicto. There is no suggestion in the testimony the father was in any way deficient in body or mind, or that he was afflicted by disease or enfeebled by age, or that the daughter was in any respect his superior. His testimony that she suggested that he should convey his property to her to avoid the possible adverse result of the litigation in which he was involved, and that she "bothered him" repeatedly about the matter, is all that appears tending to show that she took the initiative in the matter. This is denied by her, and even if true would not be sufficient to relieve him from the position of a party particeps criminis. The testimony altogether shows his was the controlling mind during the course of the completion of the fraudulent transaction, and that she was obedient to his direction and control. Afterwards she became engaged to be married, much to his displeasure. He demanded she should reconvey both of the properties to him before the celebration of the marriage, partly for the reason he disliked her intended husband and was opposed to the marriage, but he also urged as an additional reason that her intended was a minor, and could not join with her in reconveying to him, and that for that reason she could not, after the celebration of the marriage, comply with her agreement to return to him the title to the premises.

The court erred in decreeing that the deed should be reformed. The bill should have been dismissed. Neither courts of law nor in equity afford him a remedy to reform or cancel the deed or restore the title to him, or

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