APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiffs Willie Mae Bozeman and Jesse Bozeman filed a verified three-count amended complaint against defendants Richmond F. Sheriff and Josephine K. Sheriff, seeking to impose a trust in their favor on property to which defendants jointly held legal title and which plaintiffs occupied. Plaintiffs also sought to have legal title to the premises conveyed to them by defendants. The trial court dismissed the amended complaint, and plaintiffs have appealed. The only issue is whether the complaint states a cause of action.
Count I alleged that in May 1954 Alice Rayford Johnson (decedent) provided her brother, defendant Richmond F. Sheriff, with a sum of money to purchase the property in question which is located at 6137 South Racine Avenue in Chicago. It was the intent and purpose of all the parties that he would cause the property to be purchased for the use, benefit and title of decedent "as a favor" to her and with no intent to make a gift to defendants. Immediately subsequent to the purchase decedent and Willie Mae Bozeman moved into the premises and occupied it as a "family unit." Throughout the subsequent years decedent was responsible for and paid all expenses in connection with the operation of the premises including payments of utility bills, heat and mortgage. With the help of Willie Mae Bozeman she also caused necessary maintenance and janitorial work to be performed. Defendants never lived on the premises but merely "aided" decedent in the accommodation payment of the mortgage note. Neither defendant exercised any apparent possessory or beneficial claims during the life of decedent. The complaint further averred that on July 5, 1973, decedent in writing directed defendants to convey the property to plaintiffs. A copy of this purported authorization was attached to the complaint, and it reads in pertinent part as follows:
"You are hereby directed to transfer and convey the property at 6137 South Racine * * * [legal description omitted] * * * to Willie Mae Bozeman and Jesse Bozeman, her husband by Warranty Deed in Joint Tenancy."
The document indicated that it was notarized on July 5, 1973, and was signed "Alice Rayford." Plaintiffs asserted that defendants were in possession of the original document. Defendants did not directly challenge the validity of this document in the trial court. Count I requested that a "resulting" trust for the benefit of plaintiffs be imposed on the property.
This action was commenced in 1975. While the complaint did not indicate when decedent died, plaintiffs' brief states that her death occurred in 1974.
Count II alleged that there was a confidential and fiduciary relationship between defendant Richmond F. Sheriff and decedent because the former was her older brother, the spiritual leader of the family and more educated and experienced in wordly affairs and who often assumed and offered assistance regarding the real estate during a time of bereavement of decedent. Count II also averred that decedent was in a lesser financial position than defendant and, as a female, depended "upon the male sibling for leadership, advice and counsel." The complaint charged that Richmond F. Sheriff, contrary to the intention of the parties and the direction of the decedent, used his superior position and fraudulently caused the title to the property to be vested in his own name and that of his wife; that decedent and plaintiffs did not make any effort to determine the status of the title to the property until 1973 because of the fiduciary relationship; that upon learning of the status of the property the decedent demanded defendants convey title to plaintiffs, but defendants delayed and evaded decedent's charge and direction and still refused to transfer title. Count II requested that a "constructive" trust be imposed on the property for the benefit of plaintiffs.
Count III alleged that from May 18, 1954, until her death, decedent occupied the premises as apparent titular, beneficial and possessory owner and maintained continuous, exclusive, hostile and adverse possession against defendants and upon discovery of a deed in the name of defendants, directed defendants to cause a conveyance to plaintiffs who refused to comply with this direction. Count III urged the court to impose a "resulting" trust for the benefit of plaintiffs and to require defendants to convey title to them.
• 1 Plaintiffs contend that Count I states a cause of action for a "resulting" trust. In Suwalski v. Suwalski (1968), 40 Ill.2d 492, 495, 240 N.E.2d 677, the court set forth the applicable rule as follows:
"A resulting trust is created by law and arises from the presumed intention of the parties, distilled from their conduct; it comes into being at the instant the title vests or not at all. [Citation.] As we said in West v. Scott, 6 Ill.2d 167, at 172, in describing a typical resulting trust situation: `A court of equity raises the trust when land is bought with the money of one person and title is taken in the name of another. (Kane v. Johnson, 397 Ill. 112.) * * *'" See also Hanley v. Hanley (1958), 14 Ill.2d 566, 571-2, 152 N.E.2d 879.
• 2 Accepting the facts in the complaint as true for purposes of the motion to dismiss (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 305, 312 N.E.2d 259), the complaint clearly alleges that the land was purchased for decedent with her money, but legal title was taken in the name of defendants jointly. These circumstances, if proven, would show that defendants hold legal title but are required to convey the property to the person in whose favor the resulting trust has been established or, upon the failure of the person to do so, the court may direct such conveyance. (Wright v. Wright (1954), 2 Ill.2d 246, 118 N.E.2d 280; Black v. Gray (1952), 411 Ill. 503, 507-08, 104 N.E.2d 212.) As the possessor of the beneficial interest, decedent had the power to assign her interest to plaintiffs and direct defendants to convey to plaintiff, as the complaint alleges that she did. See Blair v. Linn (1934), 274 Ill. App. 23, 29; Blair v. Commissioner of Internal Revenue (1937), 300 U.S. 5, 10, 81 L.Ed. 465, 57 S.Ct. 33.
• 3 A constructive trust, which plaintiffs claim to have alleged in Count II, differs from a resulting trust. A resulting trust seeks to carry out the presumed intention of the parties at the time of the original transaction. A constructive trust "is imposed not because of the intention of the parties but because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property." (Restatement of Restitution § 160, at 642 (1937).) In general where one acquires title to land from another by fraud, duress, undue influence or mistake, equity will raise a constructive trust on behalf of the person who was defrauded, coerced, unduly influenced or mistaken. (5 Scott, The Law of Trusts § 404.2, at 3215 (3d ed. 1967); Restatement of Restitution §§ 160, 163-71 (1937).) The complaint here alleges actual fraud in that defendants concealed from decedent the fact that title was in their names (Black; Shackleford v. Elliott (1904), 209 Ill. 333, 70 N.E. 745) and also alleges that one defendant occupied a fiduciary relation to the decedent as her brother thus acquiring the property through violation of that trust. The general rule concerning fiduciary relationships is set forth in Black at pages 506-08 as follows:
"Where one occupies a fiduciary relation as agent for another, and thereby gains something for himself which in equity and good conscience he should not be permitted to keep, equity will raise a constructive trust and compel him to turn it over to the one equitably entitled to it, or to otherwise execute the trust as the court may direct.* * *
There thus being a constructive trust, the court of equity may compel the trustee * * * to convey the subject matter of the trust to the cestui * * * or, in case of his failure to do so, to ...