(145 N.E.)

King, Brower & Hurlbut, of Chicago, for, and remained in possession until April 28, appellant.

Peter J. Hower, of Chicago, for appellees.

1920. On February 15, 1916, the Kelleys assigned their interest in the contract to appellant. Appellees made the payments proDUNCAN, C. J. The circuit court of Cook vided for in the contract up to March, 1920, county entered a decree for the specific per-payments were not made at all times on the but it appears from the evidence that the

formance of a contract to convey certain real estate known as 1550 West SeventyThird street, in Chicago, entered into between Edward J. and William H. Kelley, owners of the property, and Patrick King and Catherine King, appellees. The decree of the court finds that since April, 1920, appellant, William B. Walrath, has been in possession of the premises and has received and collected the rents and income on the property, and that they are a proper charge to be adjusted in an accounting between the parties; that appellant is entitled to be reimbursed by appellees for taxes on the property for the years 1919, 1920, and 1921, with 5 per cent. interest, and for his expenses in decorating the premises immediately after they were vacated by appellees. The decree for specific performance is on condition that appellees pay appellant the amount found due him on the accounting. Walrath, who with the Kelleys was made a party defendant to the bill, prosecutes this appeal for a review of the decree.

dates they were due, and some of the payments were made and accepted which were as much as a month overdue. On March 31, 1920, appellees were in arrears $19.43, and did not during the month of April following pay that sum or the $30 installment due in April, 1920, and had not paid the taxes for the year 1919 but had paid all other taxes. Appellees moved off the premises April 28, 1920, and on April 30 appellant received a letter signed by both appellees, in this lan

guage:

"I have sickness and other trouble. We no longer are able to make payment on property known as 1550 West Seventy-Third street. We are giving up possession. You will find it vacant on April 30. Enclosed find tax bills and key."

The key referred to in the letter was the key to the front door of the house on the premises and it accompanied the letter. Appellant replied to the letter by writing appellees that he was sorry they found themThe evidence in the record is in substance selves unable to carry out the contract, and the following: Edward J. and William H. requested them to send him their copy of the Kelley were seised of the real estate con- contract (issued in duplicate), and to write tracted by them to appellees on November 5, on the contract and sign these words: 1915. By the terms of the contract appel- "April 30, 1920.-This contract is canceled lees were to pay for the property the sum of by mutual consent." Appellant having re$4,390-$500 on the day of the contract, $1,-ceived no answer to that letter, on May 5, 800 by assuming an incumbrance on the premises due May 4, 1921, $700 on May 4, 1921, and $1,390 in monthly installments of $30, beginning with February 1, 1916, with 6 per cent. interest. Appellees also agreed to pay all taxes and assessments legally levied against the premises subsequent to the year 1914. The Kelleys agreed to deliver a deed to appellees to the premises when they had paid the sum of $1,890 of the purchase price with all accrued interest, and had made due performance of the other terms of the contract required to be performed. The time for payments is made the essence of the contract. The contract also provided that in case of the failure of appellees to make the payments required of them by the contract or any part thereof, the contract, at the option of the owners of the property, should be forfeited and determined and appellees should forfeit all payments made by them, and such payments should be retained by the owners in full satisfaction and liquidation of all damages by them sustained, and they should have the right to re-enter and take possession of the premises. There was no provision in the contract giving appellees the right of occupancy, but they went into possession soon after the contract was made

1920. sent a formal notice of forfeiture of the contract to appellees, which recited the provisions of the contract and that certain payments had not been made; that there was due under the same the sum of $49.43; that appellees had abandoned the premises, having announced their intention of making no further payments on the contract; and they were notified that appellant had elected to, and did, declare the agreement null and void and all payments made thereunder forfeited as liquidated damages. Appellant having received no reply took possession of the premises and had repair work and decorating done at a cost of about $150, and on May 19, 1920, made a contract with Mr. and Mrs. John O'Donnell for the sale of the premises for $6,500, payable in monthly payments. On May 27, 1920, appellees filed their copy of the contract for record and tendered ap pellant $49.43, which he refused to accept. They made no tender for taxes and special assessments then due, aggregating $53.40. On June 17, 1920, they filed their bill for specific performance, and on the same day appellant paid the taxes and assessments on the property for the year 1919, aggregating $53.40. The O'Donnells refused to take possession of the property and make the pay

Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

D. B. Brillow, of Chicago, for appellants. Johnson, Moran, Paltzer & O'Donnell, of Chicago, for appellees.

Suit by Lena Brooks and others against of 18 years, and continued with him for more Lena Gretz and another. From judgment of than 3 years thereafter under the agreement, dismissal, plaintiffs appeal. Reversed and and gave her father the total net sum above remanded with directions. her board for investment, $1,200 earned' before she became of full age and $1,600 afterwards. Florian Gretz, born in 1877, at the age of 14 became an apprentice in a printing shop at an average wage of $15 per week until he arrived at the age of 21 years, and gave to his father, over and above the charge for his board during that time, for investment as aforesaid, the total sum of $3,250, and continued thereafter with his father until he had earned and paid to him, for investment under the contract, the further sum of $5,000. In a similar manner Frank J. Gretz, born in 1879, and Eleanor Coleman, born in 1884, sought and obtained employment and remained with their father until and after they arrived at the age of their majority, and received from their employment and paid to their father over and above the charge for board, for investment under the agreement, the total sums of $5,150 and $2,000, respectively, a portion of the said total sums being for wages earned before and a portion thereof being for wages earned after they arrived at their majority. The total sum received from all of the appellants by their father under said agreement, for investment for their benefit in interest-bearing securities, was $18,200.

DUNCAN, C. J On July 14, 1922, Lena Brooks, Florian Gretz. Frank J. Gretz, and filed Eleanor Coleman, appellants, their amended bill in the circuit court of Cook county against appellees, Lena Gretz (their stepmother) and Catherine L. Ernst, to set aside a certain deed to lot 9, block 11, in Murphy's addition to Rogers Park, in Chicago, purporting to be made by Frank J. Gretz and wife to Catherine L. Ernst, and also all subsequent conveyances of said lot, and to revest title in Frank for the benefit of the appellants, and that lots 7 and 8 in said block, and all improvements thereon, be decreed to be held by Lena Gretz in trust for the appellants, and for an accounting for rents, and for other and further relief. Appellees filed a general demurrer to the bill, which was sustained, and the bill was dismissed for want of equity The appeal is direct to this court.

Appellants are the living children of Ignatz Gretz and Anna Gretz, husband and wife, both deceased. Lena Gretz (formerly Lena McCall) is the second wife of Ignatz. Appellants, as they arrived at the age of 14 years, respectively, were emancipated by their father and ordered by him to find employment of their own and become self-sustaining. He agreed with every one of them, as they arrived at said age, that they might live and board with him provided they would each pay to him all their wages except about $2 per week for their personal expenses, and that he would charge each one of them $3 per week for board, and would invest the remainder of their money for their use and benefit in interest-bearing securities. All of them. at his direction, secured for themselves employment as they became of the age of 14 years and remained with him up to their majority and continued to live with him for a time after they had arrived at their majority, and continued during the whole time they were with him to pay him their wages, except $2 thereof per week, under said agreement on his part that he would invest their wages as aforesaid, except $3 per week for each of them, which he was to retain as a charge for their board. Their father, until after the year 1903, and after they were of age and married, was a working man, earning not to exceed $12 per week, and their mother was a sickly woman, not able to do her housework or aid him in earning money. Lena Brooks, born in 1871, at the age of 14 years secured employment in a shoe factory at $15 per week and boarded with her father until she arrived at the age 145 N.E.-7

The further facts alleged in the bill and admitted by the demurrer are in substance the following: To secure to the appellants their interests in the trust fund which they had placed in their father's hands under the agreement, their father purchased property located on the north side of the city of Chicago, known and described as lot 9, in block 11, in Murphy's addition to Rogers Park, on May 21, 1906, and caused the deed thereto to be made to Frank J. Gretz, one of the appellants, and their father expressly told the appellants that he had caused the deed to be so made to Frank, and that he would cause him to execute the necessary papers so that in case of his death the property would be divided among all of the appellants as agreed, or that the same would be sold and the proceeds thereof divided among them. The purchase price for said lot was paid out of the moneys held by Ignatz in trust On the same day the deed was made to Frank he executed a trust deed to Norman Baird for part payment on the lot, which was later released upon the payment of the notes thereby secured out of the moneys held in trust for the appellants by Ignatz. It was during this same year 1906 that Ignatz ceased working at the position he had theretofore held at a lumber yard and opened a box factory for the manufacture of boxes for truck farmers' and gardners. The money which he invested in opening the box factory and erecting a building for that purpose on lot 9 was money belonging jointly to the appellants and held

occupancy, all taxes, special assessments, etc., levied against said lot, and which he did pay.

by Ignatz in trust. For the foregoing reasons Frank J. Gretz entered into the business with his father and helped to build up the box manufacturing business until about the On October 20, 1885, Ignatz Gretz invested 1st day of July, 1908. About the date last $850 in the purchase of another piece of named, Ignatz, being of about the age of 62 real estate not described in the abstract and years, while his wife, Anna, was in the in- caused the grantor to execute the deed to Ansane asylum at Elgin, became unduly in love na Gretz, mother of the complainants, and to with appellee Lena McCall, now Lena Gretz. the complainant Lena Brooks (then Lena Lena well knew all about the property rights Gretz), with the understanding that the granof the appellants in lot 9, and in other real tees were to hold the title to the property estate held or purchased by Ignatz, and of jointly for the benefit of Ignatz and Anna the fact that Ignatz held money of the ap- Gretz and all the complainants. Ignatz expellants as trust funds under the agreement pended about $1,000 in erecting a cottage upaforesaid. She also well knew the undue in- on the premises, into which the family influence that she had and could employ in cluding the complainants, moved and occudealing with Ignatz, and with the fraudu- pied it as their home During the year 1901 lent intent of obtaining for herself all of he also caused a three-story brick building his property, including that which he held for to be erected on the premises, moving the cotthe appellants, she caused Ignatz and others tage to the rear thereof, and the money to enter into the following conveyances and which Ignatz paid for the erection of the transactions as to lot No. 9. On July 24, brick building was spent from the money 1908, she had Ignatz obtain a purported con- held in trust for the complainants. Anna veyance by warranty deed from Frank J. Gretz, mother of the complainants, became Gretz to lot 9, after falsely informing Frank demented in 1888 and remained so until her that the deed was made for the benefit and death, March 9, 1911, and was confined in the security of all the appellants, and for the state hospital. On July 2, 1890, Ignatz repurpose of protecting their interests in case quested Lena Brooks to join with her mother of the death of Frank, and that the deed in a conveyance of this last-mentioned proponly amounted to a declaration of trust. Be erty to August Schaefers. This deed was lieving said representations, Frank signed without consideration and was made upon and acknowledged the deed, but in the deed the representation of Ignatz that such conno grantee was named or agreed on and veyance would be necessary to protect the there was no consideration paid to him by complainants and their parents from uncerany one for the signing thereof. Afterwards, tain contingencies on account of the unsoundand before the deed was recorded, the name ness of mind of Anna Gretz and any attachof Catherine L. Ernst was written therein ment under the dower and homestead laws as the grantee without the knowledge or con- of any prospective rights the husband of sent of Frank, and Frank had never known Lena might have. The father further repor had any dealings with Mrs. Ernst or any resented that Schaefers was to hold such understanding that her name or the name of deed in trust only for the benefit of the comany other grantee was to be written therein. plainants and their parents. Without the On July 31, 1908, Mrs. Ernst and her hus- knowledge or consent of the complainants, band, in furtherance of the fraudulent scheme on the same day last named, Ignatz obtained aforesaid, executed a warranty deed to lot a reconveyance of this property from Schaef9 to Lena McCall, which was executed with- ers and his wife to himself, which was also out any consideration therefor, and which without consideration. Less than six weeks was later duly recorded without the knowl- after the death of their mother, Ignatz maredge or consent of Frank or of any of the ried Lena McCall, now Lena Gretz, and on appellants, and they never learned anything January 10, 1912, with full knowledge of all about inserting the name of Mrs. Ernst as the foregoing facts, and with the same purthe grantee, which they denounce as a forg- pose and frauduent intent with which she obery, and the execution of the deed by Mrs. tained title to lot 9, Lena conspired with IgErnst and her husband, until after the death natz and caused him to unite with her in a of their father, which occurred January 17, deed to said undescribed property to Mrs. 1919. Frank J. Gretz at all times herein Ernst, and on January 11, 1912, caused Mrs. named has manifested his desire and will- Ernst and her husband to convey this propingness to carry out the trust impressed up- erty to Ignatz and Lena Gretz in joint tenon him by the conveyance of lot 9 to him, ancy, said deeds being without consideration and expressly avers that he is still ready and and for the purpose of defrauding the com. willing so to do when the void instruments, plainants. For the same fraudulent purpose, which are clouds on the title to said real es- on June 22, 1916, Ignatz and his wife executtate, are removed. While he was in the box ed a warranty deed to this real estate to manufacturing business with his father and Guiseppi Turetta for the sum of $5,500 paid occupying lot 9 for that business, he and his to them. The complainants requested 1gfather entered into an agreement that his natz to advise them how the money so obfather was to pay, in consideration for such tained for this property was to be held or 1

(145 N.E.)

that she has caused an affidavit to be filed by her attorney in the recorder's office of Cook county setting forth and suggesting the death of Ignatz thereby attempting to vest the absolute title to the premises in her, as surviving joint tenant. They did not learn the facts concerning the various conveyances and transactions aforesaid, brought about by the fraud of Lena, until after the death of their father and until after they had examined the record of the title to said lands. They further alleged that Lena is collecting the rents and profits from the real estate. They charge that she holds the same in trust for appel. lants and that she could not be made re sponsible for their rights by judgment.

divided, and he informed them that the mon- | the real or personal property of the deceased; ey would be held as a trust fund and that they would get their shares of the fund at his death; that he would invest the money in improving lots 7 and 8, in block 11, in Murphy's addition to Rogers Park, which he had previously obtained by a contract and option, and for the improvement of lot 9, and that he would cause the deed to lots 7 and 8 to be made to Frank J. Gretz and cause him to execute the necessary papers so that in case of his death the property, or the proceeds thereof, would be divided among the complainants as already agreed. The complainants relied upon these representations of their father, fully trusting him because of the fact that he had previously executed to Frank a similar deed to lot 9. With the same fraudulent design Lena McCall had, prior thereto, on September 27, 1909, by her undue influence caused Ignatz to have S. Rogers Touhy, the owner of lots 7 and 8, execute a warranty deed to said lots to her, which was duly recorded. Subsequently Ignatz improved the property by erecting a large and expensive building on lot 7 and paid for such improvements out of the trust fund he held for the complainants.

[1] The bill in this case covers about 30 typewritten pages in the record, and the allegations therein are so unnecessarily verbose, and so inartificially arranged, that we have been compelled to even read the bill in the record and give it close study to understand it. As we understand it, we have stated the substance of the allegations in the bill, and as stated we do not think the court was warranted in sustaining a general demurrer to it.

[2]. The rule is well settled that if a bill contains sufficient allegations as to any subject-matter to entitle the complainants to equitable relief, a general demurrer to the same should not be sustained although it may contain a great deal of irrelevant matter.

[3] The allegations in the bill as to lot 9, at least, are sufficient to entitle the appellants to equitable relief. Where property is conveyed to the grantee upon his parol promise to the grantor to convey the same to third

promise to hold the same for the benefit and use of other persons, a court of equity will raise a constructive trust and convert the grantee into a trustee for the benefit of such third persons. Stahl v. Stahl, 214 Ill. 131, 73 N. E. 319, 68 L. R. A. 617, 105 Am. St. Rep. 101, 2 Ann. Cas. 774;'Hilt v. Simpson, 230 Ill. 170, 82 N. E. 588.

The final allegations in the bill as to lots 7, 8, and 9 are that Lena McCall, after her marriage to Ignatz Gretz, and on January 10, 1912, with full knowledge of all the facts aforesaid, and in pursuance of the intent to defraud the complainants of all of their property rights, joined her husband in a deed, for which there was no consideration, to Catherine L. Ernst to all the lots to which she had obtained title before her marriage, to wit, lots 7, 8 and 9, and on the following day, January 11, 1912, Mrs. Ernst and her husband conveyed all of the property to Ig-persons upon the grantor's death, or upon his natz and Lena Gretz in joint tenancy, without consideration and in pursuance of the fraudulent design aforesaid. After the death of their father the complainants called upon Lena to ask what arrangements had been made by their father whereby they might get their just shares in his estate, and they were informed by her attorney, who was with her, in answer to their inquiries, that the matter had been arranged, and that as soon as possible the complainants would be called in for a settlement and that every one of them would get his just share in accordance with equity and that they would not lose anything on their savings placed in the hands of their father. The complainants believed the state ment and relied thereon. Shortly before the filing of the bill herein, they learned that Lena was intending to leave complainants without any consideration or settlement and that she had listed the real estate with real estate agents for sale, and that she is still attempting to sell all the property, and will do so unless prevented by a decree of the court. They further alleged that she refused to give them any information whatsoever concerning

[4] The facts showing the constructive trust may be proved by parol evidence, and are therefore not within the provision of the statute of frauds requiring the trust created to be in writing Hilt v. Simpson, supra.

[5] Under the allegations of this bill, the deed of Frank J. Gretz, in which the name of the grantee was inserted after its execution and without his consent or authority, conveyed no interest in the land. Besides, all subsequent grantees, according to the allegations of the bill, had notice of the trust with which the land was impressed when conveyed to Frank. All subsequent grantees of Frank, if their deeds were valid, would hold the title to lot 9 subject to the trust aforesaid, and for the further reason that they took title without consideration.