Appeal from the Circuit Court of Du Page County; the Hon.
Richard A. Lucas, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 11, 1985.
Plaintiff, Gary-Wheaton Bank, appeals from the denial by the circuit court of Du Page County of its motion for a turnover order. Plaintiff contended that a conveyance of a one-third beneficial interest in a trust consisting of a single-family residence from defendant Edward Meyer, Sr., to Edward Meyer, Jr., was fraudulent.
On appeal, the plaintiff contends: (1) the trial court's finding of a resulting trust was against the manifest weight of the evidence; (2) the trial court's finding that the conveyance from Edward Meyer, Sr., to Edward Meyer, Jr., was not fraudulent was against the manifest weight of the evidence; (3) the trial court's finding that estoppel does not operate to deny Gertrude Wagemann's ownership of the property was against the manifest weight of the evidence. Because we hold the court's findings were against the manifest weight of the evidence, we reverse and remand.
In August 1982 defendant Edward Meyer, Sr. (Meyer, Sr.), was delinquent on unsecured loans from plaintiff Gary-Wheaton Bank (bank). The bank proposed to Meyer, Sr., that the loans be rewritten with Meyer, Sr.'s residence as collateral on the loans. Meyer, Sr., rejected this proposal, and the bank filed suit.
Summons and complaint were served. Meyer, Sr., did not appear, and a default judgment was entered on January 10, 1983, in the amount of $15,243.02. On October 25, 1983, the judgment was increased an additional $6,207.08 because of a second loan judgment.
The bank issued a citation to discover assets, citing Chicago Title and Trust Company, whereupon documents relating to a trust agreement were discovered. The trust agreement was dated January 17, 1961, and listed Meyer, Sr., Meyer, Sr.'s wife (Mary Meyer), and Gertrude W. Wagemann (Wagemann), Mary Meyer's mother, as beneficiaries of the trust to be held as joint tenants.
The corpus of the trust is a single-family residence at 26 W 110 Embden Lane, Wheaton. Wagemann, Meyer, Sr., Mary Meyer, and Meyer, Sr.'s son, Edward Meyer, Jr. (Meyer, Jr.), presently live there.
On November 11, 1982, Meyer, Sr., conveyed his one-third interest to Meyer, Jr. The assignment was predated October 25, 1982, Meyer, Jr.'s birthday. At trial both Wagemann and Meyer, Sr., testified this conveyance was in response to a request by Wagemann. The assignment was accepted by Chicago Title and Trust on December 7, 1982.
In seeking to declare the conveyance void, the bank claimed it was fraudulent to avoid creditors. Meyer, Jr., appeared to defend the action. He is one of the citees. The other citee is Chicago Title and Trust Company. After hearing the evidence, the trial court denied the bank's motion to set aside the conveyance. The trial court held:
"1) That the real estate in question which is requested to be transferred under the motion for a turnover order was purchased with funds wholly from the estate of Gertrude Wagemann.
2) That the property was placed in trust and the defendant in this cause named as a beneficiary of that trust without any consideration paid by the defendant.
3) That although the defendant resided in the property throughout the period of ownership and may have on occasion contributed to the maintenance of the property, his contributions toward said maintenance could not and will not be considered by me as evidence of a contribution to the purchase or evidence of ownership.
4) It is a further finding that although Gertrude W. Wagemann allowed the defendant, Edward B. Meyer, to be a beneficiary of a trust, it was not such an act as would estop her from claiming the ownership by reason of the creditors allegedly relying upon his undisclosed interest in the real estate. I further find that although one time eleven years previously the plaintiff may have relied to some degree on the defendant's disclosure of his interest to lend him money, it would be difficult for me to believe that the loans which are the subject of the underlying action herein were made on the basis of this undisclosed interest eleven years previously and not on the basis of the relationship which arose between Mr. Meyer and Mr. Monson over the period of years.
Therefore, I find no estoppel on the respondent, Gertrude W. Wagemann, to deny her ownership in the property or to deny Mr. Meyer's ownership in the property, and I do not find as a matter of law that the Gary-Wheaton Bank relied on the disclosed, undivided interest of Mr. Meyer as the basis for making the loans the subject of this underlying action. Inasmuch as all the funds used for the purchase of this home and the great majority of maintenance of this home were supplied by Gertrude W. Wagemann, there should be and is clearly a resulting trust, and transfer or conveyance by Edward B. Meyer, Sr., to his son Edward B. Meyer, Jr., at the ...