Smith v. Smith

Illinois Supreme Court

Smith v. Smith

85 Ill. 189

CourtIllinois Supreme Court

DecidedJanuary 15, 1877

StatusPublished

Cited by16 cases

This text of 85 Ill. 189 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith, 85 Ill. 189 (Ill. 1877).

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Opinion

Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The proofs in this case establish quite clearly a resulting trust. It is obj'ected that, although they do, such is the frame of the bill that, under it, proofs could not be made nor the complainant have relief in respect of a resulting trust. As the hill alleges that the complainant and Enos Smith entered into a verbal agreement together, whereby the latter was to contract for the purchase of the land in question from one Wolford, and agreed to pay therefor the sum of $1300, in stipulated payments, and the complainant was to furnish and pay one-half of the purchase price, and have a deed to an undivided one-half interest in the land, and that, under such verbal agreement, said Enos Smith entered into a contract, in his own name, for the purchase of the land from Wolford, it is contended that the bill is one to compel the specific performance of said verbal agreement, and not one to declare and enforce a resulting trust. The position is not well taken.

The bill alleges that the complainant furnished one-half of the purchase money which went into the purchase of the land from Wolford, and that Enos Smith took the deed for the land in his own name. The facts stated in the bill show a resulting trust. That was sufficient, without naming it a resulting trust. The resulting trust arose from the payment of one-half of the purchase money at the time of the purchase, and the deed being made to another. It was none the less such a trust because the money was paid in pursuance of a prior express contract between the parties.

■ It is said the clerk, in his certificate to the transcript of the record, does not certify to it as containing a copy of all the depositions and evidence in the case, but only of certain named depositions, and 'that, in support of the decree, it should be presumed there was other sufficient evidence to warrant it. Such is not the rule in chancery practice. A decree in chancery dismissing a bill will be reversed if, by the proofs appearing in the record, it is not justified.

The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.

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Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The proofs in this case establish quite clearly a resulting trust. It is obj'ected that, although they do, such is the frame of the bill that, under it, proofs could not be made nor the complainant have relief in respect of a resulting trust. As the hill alleges that the complainant and Enos Smith entered into a verbal agreement together, whereby the latter was to contract for the purchase of the land in question from one Wolford, and agreed to pay therefor the sum of $1300, in stipulated payments, and the complainant was to furnish and pay one-half of the purchase price, and have a deed to an undivided one-half interest in the land, and that, under such verbal agreement, said Enos Smith entered into a contract, in his own name, for the purchase of the land from Wolford, it is contended that the bill is one to compel the specific performance of said verbal agreement, and not one to declare and enforce a resulting trust. The position is not well taken.

The bill alleges that the complainant furnished one-half of the purchase money which went into the purchase of the land from Wolford, and that Enos Smith took the deed for the land in his own name. The facts stated in the bill show a resulting trust. That was sufficient, without naming it a resulting trust. The resulting trust arose from the payment of one-half of the purchase money at the time of the purchase, and the deed being made to another. It was none the less such a trust because the money was paid in pursuance of a prior express contract between the parties.

■ It is said the clerk, in his certificate to the transcript of the record, does not certify to it as containing a copy of all the depositions and evidence in the case, but only of certain named depositions, and 'that, in support of the decree, it should be presumed there was other sufficient evidence to warrant it. Such is not the rule in chancery practice. A decree in chancery dismissing a bill will be reversed if, by the proofs appearing in the record, it is not justified.

The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.

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Bluebook (online)

85 Ill. 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-ill-1877.

Opinion

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