APPEAL from the Circuit Court of La Salle County; the Hon.
WILLIAM R. DUSHER, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1957.
Plaintiffs and a counterclaimant appeal directly to this court from a decree of the circuit court of La Salle County dismissing for want of equity plaintiffs' complaint and defendant Margaret Burrow's counterclaim wherein it is prayed that the defendant Burton W. Palmer be decreed to hold title to certain real estate in trust and for other relief.
A freehold being directly in issue, the appeal properly comes directly to this court.
The complaint in substance alleges that Mary F. Palmer, mother of the defendant, Burton W. Palmer, and of the counterclaimant Margaret Burrows, during her lifetime conveyed two apartment buildings to the defendant, Burton W. Palmer, without consideration and for her use and benefit; that a confidential and fiduciary relationship then existed between Mary F. Palmer and her son, Burton W. Palmer; that Burton W. Palmer never reconveyed the title to the buildings to Mary F. Palmer during her lifetime and held the title thereto in trust for her at her death. The suit was instituted by the eight minor children of Margaret Burrows, defendant-counterclaimant, as contingent remaindermen under a testamentary trust created by the last will of Mary F. Palmer, their grandmother. That they were proper parties plaintiffs and have a right to maintain this suit was decided by this court in Burrows v. Palmer, 5 Ill.2d 434, on appeal from an earlier order dismissing their complaint for want of proper parties.
The answer of defendant Burton W. Palmer denied the material allegations of the complaint, alleged his purchase of the properties for a valuable consideration, and also pleaded laches and the statute of limitations as special defenses.
Witnesses called for the plaintiffs were their mother, Margaret Burrows; Dr. Samuel J. Burrows, their father and next friend who instituted the suit; Helen Palmer, wife of the defendant Burton W. Palmer at the time of title transfer but since divorced from him; Fred A. Gerding, president of a bank holding a first mortgage on the property at the time of transfer; John W. Meagher, a realtor; and the defendant, Burton W. Palmer, under section 60 of the Civil Practice Act. Voluminous documentary evidence was also introduced in evidence by plaintiffs.
Defendant called as witnesses in his behalf Thomas Emmett White, the attorney who handled the transactions in question; and Charles H. Eichelkraut, a contractor, appraiser and president of the First Federal Building and Loan Association which made a first mortgage loan on the property shortly after the transaction in question.
The trial court in its opinion found no trust to exist and no laches on the part of plaintiffs, and dismissed the complaint and counterclaim.
An examination of the testimony and documentary evidence reveals in substance the following facts. Prior to 1927 Mary F. Palmer and her husband owned three adjacent apartment buildings in Ottawa but lived in another city. The buildings were commonly known as the Palm, the Palmer, and the Palmetto Apartments. On December 10, 1927, Mary F. Palmer and her husband deeded the Palmetto Apartment building to Burton W. Palmer, defendant herein, as a gift, the title to which is not involved in this litigation. On the death of the father, title to the Palm and the Palmer passed to Mary F. Palmer. During all of this time Burton W. Palmer actively managed all of the properties, renting the apartments, paying the bills and expenses and handling all matters concerning them.
At the time of death of the father in 1932 the three apartment buildings were subject to a first mortgage to the First National Bank of Ottawa, Illinois, as trustee, securing the payment of $55,000. The notes were then due and payable and the holders of the notes wanted payment, but Mary F. Palmer was unable to pay on account of then existing financial conditions. Finally the notes were extended for five years. When the notes again were approaching maturity, the First National Bank of Ottawa, the only remaining bank in the city, was unwilling to negotiate a new loan with Mary F. Palmer. She was a widow, 58 or 59 years old. The president of the bank testified that he and other bank officers did not believe her to be a good risk because she had no other income and that the holders of the notes would not renew them again. At that time there was a principal balance due of $49,000.
On April 27, 1936, Mary F. Palmer conveyed the Palmer and the Palm apartment buildings to the defendant, Burton W. Palmer. The determining issue of this case is whether such conveyance was absolute or in trust.
The only testimony in the record concerning the details of this transaction is that of Thomas Emmett White, a lawyer of approximately 35 years experience in the practice of law. He was acquainted with Mary F. Palmer and her husband before he died. He was attorney for the First Federal Savings and Loan Association of Ottawa and prepared the warranty deed in question, loan papers for a $49,000 loan to Burton W. Palmer thereon, and examined the abstract of title. He prepared the deed in question about the date it bears, called Mary F. Palmer and told her to come to the office for he had the papers prepared for her. She came to his office alone on the morning of October 27, 1936, and he had a conversation with her concerning the deed. She executed it in his presence, he acknowledged it, and gave it back to her, telling her that he would get the stamps and drop in at noon and give them to her. He lived in the same apartment building right across the hall from her. White took the revenue stamps to her and she affixed them to the deed and endorsed them in his presence. She was mentally alert at the time and the substance of White's conversation was that the loan was ready for closing, that she understood that she was conveying the property to Burton, and that she signed the deed. When the loan papers were completed, he would clean up the loan with the bank, which would take considerable time because the notes were scattered. When in shape, Burton was to execute his note for $15,000 to Mary F. Palmer. The notes were not then available, which he explained to her, and as fast as they came in they would pay them. She understood it, it was agreeable to her, her mortgage was to be liquidated, and she was to take a note for $15,000.
A few days after Mary F. Palmer signed the deed, Samuel J. Burrows and his wife, Margaret Burrows, went to White's office and executed a quitclaim deed of the same property to Burton W. Palmer. White testified that he prepared these deeds and that they were ready when Dr. and Mrs. Burrows came in together to sign them. White told them that Mrs. Palmer had sold the property to Burton, that Burton was getting a loan on it from the Building and Loan Association, that their mother had executed a deed, and that to be sure they understood it he had a deed for them he wished they would execute. He told them that Burton was the grantee and Mr. and Mrs. Burrows signed the ...