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Bilyeu v. Plant

SEPTEMBER 20, 1966.

EARL BILYEU, ET AL., PLAINTIFFS-APPELLANTS,

v.

GRACE PLANT AND "UNKNOWN OWNERS," DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Bond County; the Hon. GEORGE W. KASSERMAN, JR., Judge, presiding. Judgment adverse to defendants affirmed.

GOLDENHERSH, P.J.

Plaintiffs, Earl Bilyeu, Perry Bilyeu, and Elizabeth Thomas, appeal from the judgment entered by the Circuit Court of Bond County, denying to plaintiffs any of the relief sought in their amended complaint.

Plaintiffs and defendant are the surviving brothers and sisters, and the only heirs, of Harry M. Bilyeu, deceased, who died on July 2, 1959.

Plaintiffs' amended complaint is in three counts. In Count I plaintiffs allege that in 1912 Harry M. Bilyeu took record title to certain described real estate, that a mortgage on said real estate was foreclosed, that the receiver for a Joint Stock Land Bank conveyed the real estate to Frank Doll and Chris Doll by deed dated July 19, 1937, and recorded on August 12, 1937; that the Dolls, and the spouse of one of them, conveyed the real estate to defendant, Grace Plant, by warranty deed dated July 30, 1937, and recorded August 12, 1937, that defendant held title to said real estate under a resulting trust for her brother, Harry M. Bilyeu, because he furnished the consideration for the conveyance with the intent that the resulting trust arise from the transaction; that since the death of Harry M. Bilyeu, and in violation of the resulting trust, she claims complete and sole ownership of the real estate, that during the entire period that defendant has held apparent record title to the real estate, the said Harry M. Bilyeu remained in possession thereof, that because of the resulting trust, the defendant's interest in the real estate is apparent and not real.

As to Count I, plaintiffs pray that the court decree that defendant held record title in trust for Harry M. Bilyeu, that the plaintiffs and defendant be decreed to be the owners of the real estate, and that defendant have no right, title or interest therein superior to that of plaintiffs.

In Count II, plaintiffs repeat many of the above allegations, and allege further that defendant abused a confidential or fiduciary relationship, and pray that the court decree that she held title by virtue of a constructive trust.

In Count III, plaintiffs allege that Harry M. Bilyeu was in continuous, open, notorious possession of the real estate for more than 20 years, and while in such continuous, open, notorious possession, under color of title, paid taxes thereon for more than 7 years, and pray that the court decree that Harry M. Bilyeu was vested with title by virtue of such adverse possession.

The answer admits many of the allegations, denies that Harry M. Bilyeu furnished the consideration for the conveyance to defendant, denies the creation of a resulting trust, denies a fiduciary relationship or any abuse thereof, admits Harry M. Bilyeu was in possession of the real estate but states that it was not adverse to defendant, and was with her permission.

The parties stipulated that Harry M. Bilyeu acquired title to the real estate in 1912, that a mortgage on the real estate was foreclosed, that on the dates, and by means of the instruments, described in the amended complaint, it was conveyed to the Dolls, and by the Dolls to defendant, that the real estate taxes for the years 1937 through 1957 were paid by Harry M. Bilyeu, that income tax returns filed by Harry M. Bilyeu show he reported income from the real estate until his death, that in 1958, Harry M. Bilyeu paid the premium for fire and extended coverage on the house, in 1956 paid for corn insurance, and in 1957 paid for seed.

Chris Doll, called by plaintiffs, testified that Frank Doll was deceased, that he had knowledge of the subject real estate since 1912, and had known Harry M. Bilyeu since 1920, that Harry M. Bilyeu lived on the farm since at least 1920, that the total acreage of the farm occupied by Harry M. Bilyeu was 170 acres, of which 140 acres were in cultivation, that from 1920 until 1937, he and his brother were tenants on the farm, that a mortgage on the farm was foreclosed, that he and his brother, after discussion with Harry M. Bilyeu, bought the farm from the receiver for the Joint Stock Land Bank, that it was their intention, as discussed with Harry M. Bilyeu, to keep 90 acres, that Harry M. Bilyeu told the Dolls to convey the balance of the farm to defendant, that his deceased brother made the financial arrangements and he did not know whether defendant gave his brother any money, that she (the defendant) gave him no money, that after the conveyance to defendant, Harry M. Bilyeu continued to occupy the house on the farm until his death; that Harry M. Bilyeu, or his employees farmed the land, that part of it was fenced, and that Harry M. Bilyeu maintained and repaired the improvements. He and his brother were paid $2,500, but he had no knowledge as to where Harry M. Bilyeu obtained the money. When asked whether he received any money, Mr. Doll answered, "No, that arrangement was made at the bank."

Guy Gillespie, Charles McClain, Henry Hollar and Florence Hollar, testified that Harry M. Bilyeu was in continuous possession of, and farmed the land, from 1920 to the time of his death.

Irving Iberg testified that since 1958, the property had been assessed for real estate taxes, in the name of defendant, that from 1937 to 1957, the land was assessed in the name of Harry M. Bilyeu.

George Clark testified that he was manager of, and had been bookkeeper for, a grain elevator, that payments for grain grown on the farm were divided two-thirds to a tenant and one-third to Harry M. Bilyeu.

Charles Woolsey testified that he had known Harry M. Bilyeu since before 1920, that Harry M. Bilyeu had always lived on the farm, that he frequently worked for him, that Harry M. Bilyeu had always paid him, that once when he repaired some windstorm damage, Harry M. ...


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