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rent does not appear. He conveyed the tract to his wife, Adeline Davis, and she is in possession. When the deeds were made, Sarena Davis, with her two daughters, occupied the dwelling house on the fifty acres, and she continued to live in said house up to her death. The daughter Martha lived with her and after her marriage to Curran they all lived together, Curran assuming the position of head of the family. During all the time after the deeds were made until the death of Sarena Davis she owned the life estate in the whole of the premises. The deeds granted only estates in the future. If William or his grantee or Martha or her heirs had any possession it was not by virtue of any deed, for by the terms of the deeds no possessory title was conveyed until after the expiration of the life estate. There was no title or right to possession during the life estate, pursuant to the terms of the deeds. The possession which will operate, in connection with a deed, to convey title, must be abandoned . or given in pursuance of the deed, and a simple abandon
ment or giving possession of premises not pursuant to a conveyance does not transfer title. (Gray v. Schofield, supra.) The possession which it is claimed the grantees had, is expressly reserved by the terms of the deeds to Sarena Davis. The deeds do not convey any title, and title did not pass by abandonment or giving possession under them. They were therefore nullities, and the legal title passed to the heirs-at-law of Sarena Davis.
It is further claimed that there were resulting trusts in favor of William S. Davis and Martha M. Davis in the premises to the extent to which they furnished the purchase money, and that the deeds are valid as declarations of such resulting trusts. This claim cannot be sustained. The deeds were not declarations of any trust corresponding with the alleged trusts. The claim is, that William S. Davis and Martha M. Davis put their shares of a former home place into the quarter section in which these premises are located. They and the complainants J. M.
Davis, Rebecca J. Teel and Amanda McCullouch owned forty acres of land as heirs of their father, subject to the dower of their mother, Sarena Davis. That forty was sold, and the claim is that William and Martha furnished that part of the purchase money of the place now in controversy represented by their shares of the proceeds. The deeds are grants of future estates covering the whole premises, and cannot be said to be declarations of the alleged trusts. So far as any resulting trust is concerned, the court could not give any relief for want of any averment in the pleadings and because no such relief was asked for.
It is next claimed that an affidavit made by Sarena Davis works as an estoppel against her heirs as to the fifty acres. The affidavit was made by her and Curran, and stated that she conveyed the fifty acres to Martha M. Davis, her daughter and wife of Patrick Curran; that said Martha M. Curran died intestate, leaving her hus. band and a child, and that the child died. This defense is not set up in the pleadings in any way, and if it were, there is no ground for an estoppel, because the affida. vit was not made for the purpose of inducing Curran to do anything, and he did nothing and did not change his position in any way in reliance upon it. The daughter Martha, and her husband, Patrick H. Curran, performed services for Sarena Davis and took care of her, but they did not acquire title to the premises by that means. The court could not give any relief to William S. Davis or his wife or to Curran in this case under the pleadings and the evidence. The manner in which homestead estates may be transferred is within the control of the legislature, and the provisions of the statute must be complied with in order to transfer such an estate.
The cross-error assigned relates to the provision of the decree protecting the mortgagee, John S. Bagby, to the amount that he may have furnished to pay off the Slack mortgage. It is said that there is no evidence
in support of the allegation that the first mortgage was given to pay off the Slack mortgage. That is true; but there is no finding in the decree on that subject, and it merely saves the right of the mortgagee and leaves the question open to be finally determined in the decree of sale or distribution or by final order. The provision of the decree in that respect is not final, and error cannot be assigned upon it.
We find no error in the record, and the decree is affirmed.
CHARLES A. MACDONALD et al.
MARJORIE H. CROSBY.
Opinion filed October 24, 1901.
1. EVIDENCE—what evidence is not hearsay. In an action to recover money loaned to a partnership by the wife of one of the partners, conversations in the presence of a third party between the husband and wife with reference to her making the loan are not hearsay evidence, but direct evidence tending to prove the contract, and are competent if the husband was acting within the scope of the partnership in negotiating the loan.
2. PARTNERSHIP—when partner's promise to re-pay loan is binding on firm. A partner's promise to re-pay a loan is binding upon the firm where his acts were performed with the knowledge and sanction of the other members of the firm and the money was received by the partnership.
3. STATUTE OF FRAUDS-Statute of Frauds is no defense to executed contract. The Statute of Frauds, requiring promises not to be performed within one year to be in writing, is no defense where the contract declared upon has been fully performed by plaintiff and nothing remains to be done by defendants but to pay the money.
4. PLEADING—when plea in action for money loaned is demurrable. If the declaration in an action against a partnership for money loaned alleges a promise by the firm to the plaintiff to re-pay, a plea alleging that whatever promise was made was a promise to answer for the debt of another is not responsive to the allegations of the declaration and is open to demurrer.
MacDonald v. Crosby, 84 Ill. App. 662, affirmed.
WRIT OF ERROR to the Branch Appellate Court for the First District;-heard in that court on writ of error to the Superior Court of Cook county; the Hon. FARLIN Q. BALL, Judge, presiding.
PECK, MILLER & STARR, and CHARLES E. KREMER, for plaintiffs in error.
WILLIAM E. HUGHES, for defendant in error.
Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:
Marjorie H. Crosby, as plaintiff, began this suit in assumpsit in the superior court of Cook county, against plaintiffs in error, to recover a sum of money due to her from them, as surviving partners of the firm of Crosby, MacDonald & Co. Her cause of action was stated in several ways in her declaration, the substance being, first, that she loaned the firm $14,000 on December 2, 1891, due in three years, and that the defendants failed to pay her; second, that on that date she mortgaged certain property belonging to her and thus raised the sum of $14,000, which she paid to the said firm in consideration that they would pay off the said mortgage when due, and that they failed to make such payment and she was compelled to do so. The third count is substantially the same as the second. The declaration also contained the common counts. Defendants pleaded, first, non-assumpsit; second and third, that the plaintiff's cause of action is barred by the Stat. ute of Frauds, it being based upon an agreement not to be performed within one year of the making thereof, and is not evidenced by any note or memorandum signed as required by the statute, and that the said promise, if one was made, was to answer for the debt of Mr. Crosby. A demurrer was sustained to the special pleas, and defendants elected to stand by them. The cause was tried before the court without a jury, resulting in a finding and judgment for the plaintiff for $17,741.55. Defendants
appealed to the Appellate Court for the First District, where the judgment below was affirmed, and they now bring the cause to this court, as plaintiffs in error, to reverse the judgments below.
By some arrangement between counsel, without the approval of the court, two sets of briefs and arguments have been filed in this case. The result has been, not only to confuse the argument of the case, but to impose additional labor upon the court. We have, however, given careful consideration to both arguments, and have reached the conclusion that no reversible error was committed by the trial court.
It was not denied that Mrs. Crosby borrowed the money and gave her note and mortgage, as alleged, and that the firm of Crosby, MacDonald & Co. received the money; but the defendants denied that the money was borrowed by her at their request or that they promised to pay the same or to indemnify her, their contention being, that her husband, Thomas G. Crosby, then a member of the firm, had overdrawn his account at that time in an amount equal to or in excess of the amount so received by the firm, and that the amount so borrowed by his wife was paid to him, and by him to the firm, to make up his overdraft, and was credited to him in his account with the firm. In other words, the real question on the trial was whether she borrowed the money for and delivered it to the firm upon their request and promise to repay it, or whether she borrowed it for her husband and delivered it to him. This question of fact was fully contested both in the superior and Appellate Courts, and it was found that she loaned the money, not to her husband individually, but to the firm; and unless a wrong conclusion was reached because of an erroneous decision upon some question of law, the judgment is conclusive.
It is first insisted that the trial court erred in not holding that a letter of December 2, 1891, signed by the firm, addressed to Mrs. Crosby, contained the whole con