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(145 N.E.) King, Brower & Hurlbut, of Chicago, for, and remained in possession until April 28, appellant.

1920. On February 15, 1916, the Kelleys asPeter J. Hower, of Chicago, for appellees. signed their interest in the contract to ap

pellant. Appellees made the payments proDUNCAN, C. J. The circuit court of Cook but it appears from the evidence that the

vided for in the contract up to March, 1920, county entered a decree for the specific performance of a contract to convey certain payments were not made at all times on the real estate known as 1550 West Seventy

dates they were due, and some of the payThird street, in Chicago, entered into be- ments were made and accepted which were tween Edward J. and William H. Kelley, as much as a month overdue. On March 31, owners of the property, and Patrick King did not during the month of April following

1920, appellees were in arrears $19.43, and and Catherine King, appellees. The decree of the court finds that since April, 1920, ap- pay that sum or the $30 installment due in pellant, William B. Walrath, has been in April, 1920, and had not paid the taxes for possession of the premises and has received the year 1919 but had paid all other taxes. and collected the rents and income on the Appellees moved off the premises April 28, property, and that they are a proper charge 1920, and on April 30 appellant received a to be adjusted in an accounting between the letter signed by both appellees, in this lanparties; that appellant is entitled to be re

guage: imbursed by appellees for taxes on the prop

“I have sickness and other trouble. We no erty for the years 1919, 1920, and 1921, with longer are able to make payment on property 5 per cent. interest, and for his expenses in known as 1550 West Seventy-Third street.

We are giving up possession. You will find it decorating the premises immediately after

vacant on April 30. Enclosed find tax bills and they were vacated by appellees. The decree

key." for specific performance is on condition that appellees pay appellant the amount found

The key referred to in the letter was the due him on the accounting. Walrath, who key to the front door of the house on the with the Kelleys was made a party defend- premises and it accompanied the letter. Apant to the bill, prosecutes this appeal for a pellant replied to the letter by writing ap reriew of the decree.

pellees that he was sorry they found them. The 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 1920. sent a formal notice of forfeiture of premises due May 4, 1921, $700 on M 4, the contract to appellees, which recited the 1921, and $1,390 in monthly installments of provisions of the contract and that certain $30, beginning with February 1, 1916, with 6 payments had not been made; that there per cent. interest. Appellees also agreed to was due under the same the sum of $49.43; pay all taxes and assessments legally levied that appellees had abandoned the premises, against the premises subsequent to the year having announced their intention of making 1914. The Kelleys agreed to deliver a deed no further payments on the contract; and to appellees to the premises when they had they were notified that appellant had elected paid the sum of $1,890 of the purchase price to, and did, declare the agreement null and with all accrued interest, and had made due void and all payments made thereunder forperformance of the other terms of the con- feited as liquidated damages. Appellant have tract required to be performed. The time ing received no reply took possession of the for payments is made the essence of the con- premises and had repair work and decorattract. The contract also provided that in ing done at a cost of about $150, and on May case of the failure of appellees to make the 19, 1920, made a contract with Mr. and Mrs. payments required of them by the contract John O'Donnell for the sale of the premises or any part thereof, the contract, at the op- for $6,500, payable in monthly payments. tion of the owners of the property, should be On May 27, 1920, appellees filed their copy forfeited and determined and appellees of the contract for record and tendered apshould forfeit all payments made by them, pellant $49.43, which he refused to accept. and such payments should be retained by the They made no tender for taxes and special owners in full satisfaction and liquidation of assessments then due, aggregating $53.40. all damages by them sustained, and they On June 17, 1920, they filed their bill for should have the right to re-enter and take specific performance, and on the same day possession of the premises. There was no appellant paid the taxes and assessments on provision in the contract giving appellees the property for the year 1919, aggregating the right of occupancy, but they went into $53.40. The O'Donnells refused to take pospossession soon after the contract was made session of the property and make the pay

ments which they agreed to make and their lees are not entitled to specific performance contract was canceled. Appellant then re- in this case. advertised the property for sale, and about Under the evidence in the record the court August 1, 1920, made a contract for the sale erred in not dismissing the bill for want of of the premises with Clara C. Dornan for equity. The decree of the court is therefore $7,500, who took possession under this con- reversed, and the cause is remanded, with tract and was in possession on November 10, directions to dismiss the bill for 'want of eq1920, when appellees filed their amended bill uity. alleging that appellant had entered into a Reversed and remanded, with directions. contract for the sale of the premises, and was collecting the rents and profits thereof. Appellant spent about $700 in decorating,

(313 I11. 290) painting, and improving the premises. He BROOKS et al. v. GRETZ et al. (No. 14914.) testified that the rental value of the property on November 5, 1915, was $25 or $30 a (Supreme Court of Illinois. Oct. 28, 1924.) month. Appellees' testimony was to the ef-1. Trusts 371(1)-Bilt in suit to set aside fect that the rental value was $20 or $25 a deeds and revest title in trustee held not bad month.

on general demurrer. [1-3] Under the evidence in this record ap Bill in suit to set aside deeds and revest pellees were not equitably entitled to specif- title in one plaintiff as trustee for benefit of ic performance of the contract. We have all, held not bad on general demurrer, though given the evidence in full-at least the sub- allegations were unnecessarily verbose and stance of it. It clearly shows that appellees

inartificially arranged. voluntarily abandoned the contract, surren- 2. Equity Cm 233—Bill containing sufficient aldered possession to appellant and notified legations to entitle complainants to relief, him that they were unable to make further sufficient on general demurrer. payments upon the contract. Appellant ac General demurrer to bill containing sufficepted their offer of abandonment of the cient allegations as to any subject-matter to contract and asked them to further signify i entitle complainants to equitable relief should its cancellation by returning their copy of relevant matter.

not be sustained, though bill contains much irthe contract with a statement on it that it was canceled by mutual consent. He then 3. Trusts 96-Constructive trust for benefit proceeded to declare a forfeiture and take of third persons to whom grantee orally

promises possession of the property and later sold it

to convey property on grantor's

death. to another party. The fact that appellees did not return their copy of the contract his oral promise to convey it to third per.

Where property is conveyed to grantee on with the signed statement requested by ap- sons on grantor's death, or hold it for their pellant did not change the situation, as this benefit and use, court of equity will raise conwas only a precautionary measure on the structive trust for benefit of such persons. part of appellant to preserve written evi

4. Trusts 9242 Constructive trust for dence of the fact that the contract was can

benefit of third persons in property conceled or abandoned. The law is well settled

veyed provable by parol. by this court that one who has abandoned a

Facts showing constructive trust for benecontract and has delivered up possession of fit of third persons, to whom grantee orally the property, in pursuance of his declaration promises to convey property on grantor's death, that he cannot carry it out, is not entitled or hold it in trust for their benefit, may be to specific performance of such contract. proved by parol evidence, and hence are not The rule in equity is that he must show that within statute of frauds requiring creation of

trust in writing. he has always been ready, willing, and able to perform the contract on his part, and he 5. Trusts Ow357(2) Grantees, taking title is not entitled to specific performance if he

with notice of trust, take it subject to trust. has consented to a rescission of the contract

Grantees, taking title without consideraor has abandoned it. Cuppy v. Allen, 176 tion, with notice of trust with which land was III. 162, 52 N. E. 61; Lasher v. Loefiler, 190 impressed when conveyed to predecessor, bold

title subject to such trust. Ill. 150, 60 N. E. 85; Hayes v. Carey, 287 III. 274 122 N. E. 524. The recording of the 6. Deeds (ww32-Deed in which grantee's name contract after its rescission and abandon

was afterwards inserted in blank space withment did not give appellees any additional

out grantor's consent, conveyed no title. right to a decree. Besides, they failed to

Deed to blank grantee, in which grantee's

was afterwards inserted without grantender the amount of taxes and special as

tor's consent or authority, of which fact all sessments then due on the property when subsequent grantees had notice, conveyed no tithey made their tender of the amount due tle. on the contract. It is, however, for the particular reason that the contract was rescind Appeal from Circuit Court, Cook County; ed and abandoned that we hold that appel- | Ira Ryner, Judge.

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

name

(145 N.E.) 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' beD. B. Brillow, of Chicago, for appellants.

fore she became of full age and $1,600 afterJobpson, Moran, Paltzer & O'Donnell, ofwards. Florian Gretz, born in 1877, at the Chicago, for appellees.

age of 14 became an apprentice in a printing

shop at an average wage of $15 per week unDUNCAN, C. J On July 14, 1922, Lena til he arrived at the age of 21 years, and Brooks, Florian Gretz, Frank J. Gretz, and gave to his father, over and above the charge Eleanor Coleman, appellants, filed their

for his board during that time, for investamended bill in the circuit court of Cook ment as aforesaid, the total sum of $3,250, county against appellees, Lena Gretz (their and continued thereafter with his father unstepmother) and Catherine L. Ernst, to set til he had earned and paid to him, for inaside a certain deed to lot 9, block 11, in vestment under the contract, the further sum Murpby's addition to Rogers Park, in Chi- of $5,000. In a similar manner Frank J. cago, purporting to be made by Frank J. Gretz, born in 1879, and Eleanor Coleman, Gretz and wife to Catherine L. Ernst, and born in 1884, sought and obtained employalso all subsequent conveyances of said lot, ment and remained with their father until and to revest title in Frank for the benefit of and after they arrived at the age of their the appellants, and that lots 7 and 8 in said majority, and received from their employblock, and all improvements thereon, be de- ment and paid to their father over and above creed to be held by Lena Gretz in trust for the charge for board, for investment under the appellants, and for an accounting for the agreement, the total sums of $5,150 and rents, and for other and further relief. Ap- $2,000, respectively, a portion of the said topellees filed a general demurrer to the bill, tal sums being for wages earned before and which was sustained, and the bill was dis- a portion thereof being for wages earned missed for want of equity The appeal is di- after they arrived at their majority. The rect to this court.

total sum received from all of the appellants Appellants are the living children of Ig- by their father under said agreement, for natz Gretz and Anna Gretz, husband and investment for their benefit in interest-bearwife, both deceased. Lena Gretz (formerly ing securities, was $18,200. Lena McCall) is the second wife of Ignatz. The further facts alleged in the bill and Appellants, as they arrived at the age of 14 admitted by the demurrer are in substance years, respectively, were emancipated by the following: To secure to the appellants their father and ordered by him to find em their interests in the trust fund which they ployment of their own and become self-sus- had placed in their father's hands under the taining. He agreed with every one of them, agreement, their father purchased property as they arrived at said age, that they might | located on the north side of the city of Chilive and board with him provided they would cago, known and described as lot 9, in block each pay to him all their wages except about 11, in Murphy's addition to Rogers Park, on $2 per week for their personal expenses, and May 21, 1906, and caused the deed thereto to that he would charge each one of them $3 be made to Frank J. Gretz, one of the appel. per week for board, and would invest the lants, and their father expressly told the apremainder of their money for their use and pellants that he had caused the deed to be benefit in interest-bearing securities. All of so made to Frank, and that he would cause them. at his direction, secured for them- him to execute the necessary papers so that selves employment as they became of the age in case of his death the property would be of 14 years and remained with him up to divided among all of the appellants as agreed, their majority and continued to live with

or that the same would be sold and the probim for a time after they had arrived at ceeds thereof divided among them. The pur. their majority, and continued during the chase price for said lot was paid out of the whole time they were with him to pay him moneys held by Ignatz in trust. On the same their wages, except $2 thereof per week, un- day the deed was made to Frank he executder said agreement on his part that he would ed a trust deed to Norman Baird for part invest their wages as aforesaid, except $3 payment on the lot, which was later released per week for each of them, which he was upon the payment of the notes thereby seto retain as a charge for their board. Their cured out of the moneys held in trust for the father, until after the year 1903, and after appellants by Ignatz. It was during this they were of age and married, was a work same year 1906 that Ignatz ceased working ing man, earning not to exceed $12 per week, at the position he had theretofore held at a and their mother was a sickly woman, not lumber yard and opened a box factory for able to do her housework or aid him in earn the manufacture of boxes for truck farmers' ing money. Lena Brooks, born in 1871, at and gardners. The money which he invested the age of 14 years secured employment in a in opening the box factory and erecting a shoe factory at $15 per week and boarded building for that purpose on lot 9 was monwith her father until she arrived at the age ey belonging jointly to the appellants and held

145 N.E.-7

by Ignatz in trust. For the foregoing rea-, occupancy, all taxes, special assessments, sons Frank J. Gretz entered into the business etc., levied against said lot, and which he with his father and helped to build up the did pay. 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 including the complainants, moved and occudealing with Igñatz, 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 unşoundand 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 rep or 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 lgfather 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

(146 N.E.) 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 that she has caused an affidavit to be filed by they would get their shares of the fund at her attorney in the recorder's office of Cook his death; that he would invest the money county setting forth and suggesting the death in improving lots 7 and 8, in block 11, in of Ignatz thereby attempting to vest the ab Murphy's addition to Rogers Park, which he solute title to the premises in her, as survive had previously obtained by a contract and ing joint tenant. They did not learn the option, and for the improvement of lot 9, facts concerning the various conveyances and and that he would cause the deed to lots 7 transactions aforesaid, brought about by the and 8 to be made to Frank J. Gretz and fraud of Lena, until after the death of their cause him to execute the necessary papers so father and until after they had examined the that in case of his death the property, or the record of the title to said lands. They furproceeds thereof, would be divided among the ther alleged that Lena is collecting the rents complainants as already agreed. The com- and profits from the real estate. They charge plainants relied upon these representations that she holds the same in trust fór appel. of their father, fully trusting him because of lants and that she could not be made rethe fact that he had previously executed to sponsible for their rights by judgment. Frank a similar deed to lot 9. With the [1] The bill in this case covers about 30 same fraudulent design Lena McCall had, typewritten pages in the record, and the alprior thereto, on September 27, 1909, by her legations therein are so unnecessarily verundue influence caused Ignatz to have s. bose, and so inartificially arranged, that we Rogers Touhy, the owner of lots 7 and 8, ex- have been compelled to even read the bill in ecute a warranty deed to said lots to her, the record and give it close study to underwhich was duly recorded. Subsequently Ig- stand it. As we understand it, we have stat. natz improved the property by erecting a ed the substance of the allegations in the large and expensive building on lot 7 and bill, and as stated we do not think the court paid for such improvements out of the trust was warranted in sustaining a general defund he held for the complainants.

murrer to it. The final allegations in the bill as to lots [2]. The rule is well settled that if a bill 7, 8, and 9 are that Lena McCall, after her contains sufficient allegations as to any submarriage to Ignatz Gretz, and on January ject-matter to entitle the complainants to 10, 1912, with full knowledge of all the facts equitable relief, a general demurrer to the aforesaid, and in pursuance of the intent to same should not be sustained although it defraud the complainants of all of their may contain a great deal of irrelevant matproperty rights, joined her husband in a ter. deed, for which there was no consideration, [3] The allegations in the bill as to lot 9, to Catherine L. Ernst to all the lots to which at least, are sufficient to entitle the appelshe had obtained title before her marriage, lants to equitable relief. Where property is to wit, lots 7, 8 and 9, and on the following conveyed to the grantee upon his parol promday, January 11, 1912, Mrs. Ernst and her ise to the grantor to convey the same to third husband conveyed all of the property to Ig- persons upon the grantor's death, or upon his natz and Lena Gretz in joint tenancy, with- promise to hold the same for the benefit and out consideration and in pursuance of the use of other persons, a court of equity will fraudulent design aforesaid. After the death raise a constructive trust and convert the of their father the complainants called upon grantee into a trustee for the benefit of such Lena to ask what arrangements had been third persons. Stabl v. Stahl, 214 Ill. 131, made by their father whereby they might get 73 N. E. 319, 68 L. R. A. 617, 105 Am. St. Rep. their just shares in bis estate, and they were 101, 2 Ann. Cas. 774;' Hilt v. Simpson, 230 informed by her attorney, who was with her, Ill. 170, 82 N. E. 588. in answer to their inquiries, that the matter [4] The facts showing the constructive had been arranged, and that as soon as possi-trust may be proved by parol evidence, and ble the complainants would be called in for a are therefore not within the provision of the settlement and that every one of them would statute of frauds requiring the trust creatget his just share in accordance with equity ed to be in writing Hilt v. Simpson, supra. and that they would not lose anything on [5] Under the allegations of this bill, the their savings placed in the hands of their deed of Frank J. Gretz, in which the name of father. The complainants believed the state the grantee was inserted after its execution ment and relied thereon. Shortly before the and without his consent or authority, confiling of the bill herein, they learned that veyed no interest in the land. Besides, all Lena was intending to leave complainants subsequent grantees, according to the allegawithout any consideration or settlement and tions of the bill, had notice of the trust with that she had listed the real estate with real which the land was impressed when conestate agents for sale, and that she is still at- veyed to Frank. All subsequent grantees of tempting to sell all the property, and will do Frank, if their deeds were valid, would hold so unless prevented by a decree of the court. the title to lot 9 subject to the trust aforeThey further alleged that she refused to give said, and for the further reason that they them any information whatsoever concerning took title without consideration,

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