APPEAL from the Circuit Court of Brown County; the Hon. FRED
G. WOLFE, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree of the circuit court of Brown County which found that appellant, Luemma Hill, had made a gift of certain real estate to Curtis E. Bowen and dismissed for want of equity her complaint to partition the same. Bowen died subsequent to the filing of the master's report in the cause and it is the executor and devisees under his will, as substituted defendants and counterclaimants, who are the appellees in this court.
The facts which appear in the record show that Bowen was a lodger in the home of appellant's parents at Mt. Sterling, Illinois, and, during 1944 and 1945, was engaged to be married to appellant. Toward the end of 1944 a business called the East End Grocery Store was up for sale and Bowen offered to advance appellant the funds with which to buy it, telling her the loan could be repaid out of the profits. Accordingly Bowen loaned appellant $584 and she purchased the business on January 15, 1945; on December 4, 1945, appellant repaid Bowen $292, but made no further repayment. Thereafter, on January 20, 1947, appellant purchased the real estate on which the store building was located, and constructed a new building thereon, all with monies arising from the operation of the grocery store. Title to the real estate was taken in appellant's name.
For the years 1945 and 1946, appellant accounted for all income from the store in her income tax returns. Likewise, during the years 1945 through 1947, the store was registered in appellant's name for sales tax purposes. Aside from the implications arising from the fact that appellant purchased the business with funds loaned by Bowen, the first evidence appearing in the record as to a partnership was that a partnership income tax return was filed at the beginning of 1948. There was no evidence, however, that it reported partnership income for the full year of 1947, nor was there an affirmative showing that the partnership was in existence on January 20, 1947, when the real estate was purchased. Subsequent to the beginning of 1948 the parties shared equally in the income and taxes on the business, partnership income tax returns were filed through the year 1953, the store was registered as Bowen and Lucas (appellant's maiden name) for sales tax purposes, and store records were kept on a partnership basis. On April 10, 1951, appellant conveyed to Bowen an undivided one-half interest in and to the real estate upon which the store was located. According to appellant, who was the only person to testify concerning the transaction, the conveyance was made to relieve her from Bowen's constant demands that he be given one half the real estate.
It is to be gathered from the record that the personal relationship of appellant and Bowen became altered at some period after the operation of the store began. In any event, on December 31, 1953, appellant caused a notice to be drawn to the effect that her partnership with Bowen would be dissolved as of January 1, 1954, that she was retiring, and that Bowen would thereafter continue the business. Some 20 to 30 of such notices were sent out to wholesalers with whom the firm did business. Subsequently, on February 18, 1954, appellant married another and left Mt. Sterling on February 25, 1954. She did not talk with Bowen between the time of the wedding and her departure but, on the day last named, caused her sister to deliver the following handwritten message to him:
"CURT In order to avoid any unpleasant words I am writing this letter to tell you I am going away I'm sorry to have to tell you this way It would be so much nicer to talk it over with you You can tell people whatever reason you wish for my leaving I appreciate your thoughtfullness and consideration in the last few months but I know that you have been miserable most of the time because of all the running in and out and so forth. The store; this includes stock and fixtures, has been changed over to you. Eugene Rose will explain any details that you do not understand. He has the records and will tell you what to do. The G.M.C. and Chevrolet are also yours; and the payments on the tin shop. The tin Shop money, car Insurance papers are in the cedar chest. I think you will find everything in order. I certainly hope so The store is all yours to operate, rent, sell or do as you please.
Please don't have too many hard feelings I have done what I thot best for everyone. I will be perfectly all right. The Household goods are also yours to do with as you please I know you will make a success of the store because you have a lot of friends.
The store, car, and cedar chest keys are under the clock on the radio."
Appellant's complaint alleges that Bowen took exclusive possession of the partnership books, assets and real estate on February 19, 1954; however, this is denied by Bowen's answer. The only evidence which tends to show that he did take possession was the testimony of an insurance agent who related that Bowen, on March 25, 1954, requested changes in the name of the insured from appellant and himself, to himself alone, in policies covering business vehicles, stock and equipment, and the building. The latter policy, it appears, was not changed over until June 9, 1954, after this suit was commenced, and in this regard the same witness stated appellant continued to carry insurance on the building after the joint policy had been cancelled. It was also shown that Bowen had paid the 1953 real estate taxes, while this cause was pending.
On April 25, 1954, sixty days after the delivery of the writing set forth above, appellant filed the complaint in this cause praying for the dissolution of the partership and for the partition of the real estate, alleging that she and Bowen owned the said real estate in equal shares. On this appeal appellant has abandoned her claim for a dissolution of the partnership, conceding, as the master and chancellor found, that she had made a valid and irrevocable gift of all business personal property to Bowen. Insofar as partition of the real estate is concerned, Bowen's answer denied all the allegations of the complaint and as alternative affirmative defenses he alleged: (1) That no partnership agreement had ever existed and that the grocery business, together with its stock, fixtures and real estate, was purchased with his money and was his sole and exclusive property; or (2) That the real estate was partnership property, and therefore personal property, and passed to him by gift as a part of the business personal property. For counterclaim Bowen alleged that appellant had made him a gift of the real estate but, in making it, had failed to comply with the law pertaining to transfers and conveyances, thus causing her intent not to have been fully effectuated according to law. The counterclaim concluded with a prayer that appellant be directed to execute a deed conveying to Bowen the undivided one-half interest in the real estate which had been the subject of her gift. Appellant denied the foregoing allegations and affirmatively pleaded that she neither gave nor intended to give Bowen her interest and that the Statute of Frauds bars him from any right to her interest in the real estate. When testifying as a rebuttal witness appellant stated: "If it might be said that I intended to give him the real estate, I here and now revoke that gift."
The master, who heard the evidence in the cause, found that the grocery business was the sole property of appellant at its inception, that the real estate was purchased with monies arising from the business; that no partnership agreement existed when the real estate was purchased; and that the said real estate was not partnership property or an asset of the partnership. He concluded that the evidence did not sufficiently or satisfactorily establish Bowen's claim to sole ownership, or a right to specific performance, and recommended that appellant's prayer for partition be granted. The chancellor, however, sustained exceptions to the report of the master and made the somewhat inconsistent findings: (1) that Bowen had furnished the purchase price for the real estate and was its sole proprietor, and (2) that appellant intended to and did give Bowen all interest she had in the said real estate, as a partner or otherwise. Thereafter the chancellor dismissed appellant's complaint for want of equity, granted the prayer of the counterclaim, and directed appellant to execute a deed conveying to appellees the property which had been the subject of her gift. This appeal has followed.
Before proceeding to a consideration of the principal issue presented in this court it is apparent, both from the finding of the chancellor and from appellees' argument in this court, that a complete disposition of the cause necessitates some consideration of the affirmative defenses pleaded by Bowen. Although appellees disavow any theory of a trust, the affirmative defense that Bowen had furnished the purchase price of the real estate and was the sole owner even though title was taken in appellant's name, is, in effect, a claim to a resulting trust in the land by operation of law. (See: Scanlon v. Scanlon, 6 Ill.2d 224, 229-230; Bowman v. Pettersen, 410 Ill. 519, 523-524.) It is a principle long established, and reiterated in the cited cases, that the burden of proof is upon the party seeking to establish a resulting trust and that the evidence, to be effective for such purpose, must be clear, convincing and unmistakable. Here Bowen offered not one iota of proof to establish his claim that he had furnished the purchase price for the land. On the other hand, appellant testified without contradiction that she purchased the real estate with monies arising from the operation of the business, and further testified to facts fairly tending to show that the purchase was made at a time when she was the sole proprietor of the business. ...