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tion is under color of the laws of the United States and the regulations of the post-office department.21

In order to settle in my own mind, at least, the question of the extent of the concurrent jurisdiction of the State courts, I have gone directly the constitution of the United States and made an exhaustive, logical analysis of Art. X. of the Amendments. This article is known usually, as the "States Rights" article. It reads as follows:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reseryed to the States respectively, or to the people."

It follows from this article that there are three depositories of power, viz: the United States, the States and the people. There are eight classes of powers,

tempt on the part of Congress to deprive a State of any of its reserved powers is unconstitutional and void. There is no provision, either direct or implied, in the constitution of the United States which prohibits a State from exercising legislative or judicial power over the subject of offenses against National banks, and consequently it comes under the reserved powers of the States. “A different rule obtains in interpreting the powers in the constitutions of the United States and the States. In ascertaining the powers of ibe former, we examine to see what powers are expressly granted or are necessarily implied for their exercise. In the latter we only examine to see what are denied by the Federal and State constitutions; and my view of the law-making power of these State governments is, that they can do any act not prohibited by the constitution; and without and beyond these limitations and restrictions, they are as absolute, omnipotent, and uncontrollabe as Parliament."22 The powers proceed not from the people of America, but from the people of the several States, and remain what they were before the adoption of the constitution, except so far as they may be abridged by that instrument. 25 The State legislature retains all the powers of legislation delegated to it by the State constitution, which are not expressly taken away by the constitution of the United States.24

Tuos. D. HAWLEY. East Tawas, Mich.


22 Mason v. Waite, 4 Scam. 134.
23 Sturges v. Crowninshield, 4 Wheat. 122.

24 Calder v. Bull, 3 Dall. 386; 2 Root, 350; Commonwealth v. Kimball, 41 Mass. 359; People v. Naglee, 1 Cal. 231.



1 Powers delegated to the United States.
2 Powers not delegated to the United States.
3 Powers prohibited to the States.
4 Powers not prohibited to the States.
5 Powers reserved to the States.
6 Powers not reserved to the States.
7 Powers reserved to the people.
8 Powers not reserved to the people.

With regard to the extent of these several classes of powers, the article in question gives us the following rules:

1 The powers delegated to the United States are, either prohibited to the States and not reserved to the States and not reserved to the people (i. e. exclusive); or they are not prohibited to the States but are reserved to the States and not reserved to the people (i. e. concurrent).

2 The powers not delegated to the United States are, either reserved to the States, or they are prohibited to the States and reserved to the people.

3 The powers probibited to the States are, either delega ted to the United States and not reserved to the people; or they are not delegated to the United States and are reserved to the people.

4 The powers not prohibited to the States are, either delegated to the United States and reserved to the States (i. e. concurrent): or they are not delegated to the United States but are reserved to the States.

5 The powers reserved to the States are, either delegated to the United States (i. e. concurrent): or they are not delegated to the United States and not reserved to the people (i. €. exclusive).

6 The powers not reserved to the States are, either delegated to the United States and prohibited to the States; or they are not delegated to the United States but are prohibited to the States and reserved to the people.

7 The powers reserved to the people are not delegated to the United States and are prohibited to the States. 8 The powers

not reserved to the people are, either delegated to the United States and prohibited to the States; or they are delegated to the United States and reserved to the States; or they are not delegated to the United States and not prohibited to the States but are reserved to the States.

It follows necessarily from these rules that the powers reserved to the States are always concurrent with the powers delegated to the United States, unless the powers are prohibited to the States or are reserved to the people; and,consequently,Congress cannot either exercise or confer exclusive powers unless the constitution of the United States prohibits the States from a concurrent exercise of the same powers; and any at

Supreme Court of Illinois, October 5, 1886. 1. Vendor and Vendee-Equitable Title-Possession -Notice.- Where a sister who has paid the larger part of the purchase money of a farm, the title without her knowledge or consent being taken in the name of her brother, who paid the balance,acts as bousekeeper only, and the brother manages the farm, and is commonly known as the owner, such possession of the sister will not put one advancing money to the brother on a deed of trust on the farm, without actual knowledge of the sister's rights, upon constructive notice as to her equitable lien.


2. Trust-Resulting Strangers" Brother and Sister.—A brother and sister are “strangers," within the rule of resulting trusts.

Trust in Fractional Interest --Statute of Frauds.-Where part of the money for the purchase of land is supplied by one person, and the title to the land when purchased is taken in his own name by another, who has supplied the remainder, equity will declare a proportionate resulting trust in favor of the first, and the fact that the agreement for the joint purchase was not in writing will not bring the case within the statute of frauds.

21 Teall v. Felton, 1 Comst. 537.

*S. C., 8 North Eastern Reporter, 182.

4. Equity--Limitations--Inequitable Bar.- Where no statute of limitations applies, the time in which a party will be barred from relief in a court of equity necessarily depends upon the circumstances of each case; and, where an excuse for delay is given wbich renders it inequitable that the bar should be interposed, no lapse of time, however great, will bar a recovery.

Appeal from Carroll county.

M. Y. Johnson and Geo. L. Hoffman, for appellant, Harris.

A resulting trust arises by implication of law, and does not depend on any agreement between the parties; and hence is not affected by the statute of frauds. Mahoney v. Mahoney, 65 III. 406; Wilson v. Byers, 77 11. 76; Smith v. Smith, 85 mi. 189; Loften v. Witboard, 92 II]. 461; Roberts v. Opp, 56 Ill. 34; Boyd v. McLean, 1 Johns. Ch. 582; Story, Eq. Jur. $ 1201.

The grantee, with notice, of a trustee under a resulting trust, stands in his shoes, and is a trustee for the owner who paid the money. West v. Fitz, 109 Tl. 425.

The law presumes that a prudent man, before purchasing, will, if the land is occupied, make necessary inquiry to ascertain by whom and by what right he is there. Truesdale v. Ford, 37 ml. 214; Clevinger v. Ross, 109 Ill. 319; Rupert v. Mark, 15 Ill. 510; Brooks v. Brown, 18 Ill. 542; Lyman v. Russell, 45 Ill. 281; Hubbard v. Kiddo, 87 Ni. 578; Story, Eq. Jur. § 400.

James Shaw, for appellees, McIntyre and others.

Parol evidence to establish resulting trusts is received with great caution. Perry, Trusts, 110, note, $$ 137–139; Lantry v. Lantry, 51 Ill. 458; Mahoney v. Mahoney, 65 Ill. 406; Enos v. Hunter, 4 Gilman, 218, 219; Maple v. Nelson, 31 Iowa, 322.

If the transaction can be called a loan, no resulting trust arises. Perry, Trusts, 106, note; Steele v. Clark, 77 11. 474; Doyle v. Murphy, 22 Dl. 502; White v. Carpenter, 2 Paige, Ch. 238,239.

If the statute of frauds is set up as against express trusts resting in parol, its effect is inexorable on express trusts not in writing. McDonald v. Stow, 109 ml. 44; Perry, Trusts, $$ 126-135; Hovey v. Holcomb, 11 III. 660; Greene v. Cook, 29 Ill. 193; Kane Co. v. Herrington, 50 Ill. 237; Carpenter v. Davis, 72 Ill. 17; Holmes v. Holmes, 44

. 169: Sheldon v. Harding, Jd. 69, Parties must act with promptness, or show good and legal cause for long delays. Perry, Trusts, SS 141, 870; Hall v. Fullerton, 69 Ill. 448; Carpenter v. Carpenter, 70 Ill. 457; Williams v. Rhodes, 81 nl. 571; Castner v. Walrod, 83 Ill. 171; McDonald v. Stow, 109 Ill. 44; Breit v. Yeaton, 101 Ii. 244; 2 Story, Eq. Jur. $ 1520.

Where possession is relied on as notice to purchasers of land of equitable claims not of record, it must be so open and notorious as to indicate to neighbors, who has the control and management. Hubbard v. Kiddo, 87 m. 580; Truesdale v. Ford, 37 Ill. 214; Strong v. Shea, 83 11. 578; Smith v. Jackson's Heirs, 76 III. 254.

SHOPE, J., delivered the opinion of the court:

It is not alleged in the bill that appellees Ashway and Marks, or either of them, had actual notice of the equitable rights of appellant set up in her bill;

and unless she had such possession of the land in question as would put them upon inquiry as to her rights therein, it is not contended that they had any notice whatever.

We have carefully considered the evidence preserved in the record, and find the facts proved to be these: In February, A. D. 1869, appellant, being a widow with two children, and having $1,600 in money, joined with her brother, Neil McIntyre, in the purchase of 152.84 acres of land known as the “Bellows Farm,” for the purpose, as she claimed, of making it a home for herself and children, and the said Neil, who was a bacbelor; that the land cost $2,100, she contributing $1,600, and said Neil $500, of the purchase money; that it was understood they should own said land as tenants in common, but said Neil, without the knowledge or consent of appellant, took the title to himself individually; that the deed was so taken February 6, 1869, and soon after recorded on the land records of Carroll county; that immediately after the acquisition of said land, appellant and her family and said Neil moved into the house on the premises, and from that time until the summer of 1881 continued to occupy it, all together, as one family, appellant being the housekeeper, and said Neil having control and management of the farin. It does not appear that she assumed or exercised any control or management of the premises or crops grown; or was in any way known, except as housekeeper for ber brother. Neil was the owner of record, in possession, and in the actual control and management of the premises; disposed of the crops, and assumed to be the exclusive owner at the time of the loan by Mark of the money secured by the trust deed to Ashway. The premises were about to be sold upon a trust deed upon the whole land executed by said Neil to one Becker to secure a loan from Gillispie, and said Neil applied to Ashway for a loan upon the land to pay off such prior encumbrance. Th being refused, an arrangement was subsequently made by which the said Neil agreed to and did convey the land to his brother, Daniel McIntyre, and the loan was made by Ashway to him of the money of Mrs. Mark, and the trust deed to Ashway, as trustee, taken to secure the same. This was on the 26th day of March, 1879. It appears. therefore, that there was nothing but the bare fact that appellant resided with her children upon the premises, ostensibly as the housekeeper of her brother Neil, to put them or anyone upon inquiry. This condition had continued from the spring of A. D. 1869, when they went into possession. That the loan by appellee Ashway for Mrs. Mark was made in perfect good faith, and without any actual notice of any claim of appellant to the land in controversy, is abundantly shown by the evidence.

If appellant was, at the time of taking the trus

deed by Ashway, in open and visible possession of the land, the law would charge appellees Ashway and Marks with notice of her equitable interest. Or, if the circumstances were such that an ordinarily prudent and cautious man would have inquired as to her claim upon the land, they will be held to have been bound to make inquiry, and be chargeable with such notice as diligent inquiry would disclose. Persons acquiring title to or liens upon land cannot shut their eyes willfully or negligently, where proper observation would lead to knowledge of the rights of others, and then be heard to insist they had no notice of that which, by the exercise of ordinary care and prudence, would have been apparent to them. The possession, however, which will protect the bolder of an equitable title, must be such as to put purchasers upon inquiry which, if followed, would lead to notice of such equity.

It will be unnecessary to review here the numerous adjudications upon this subject. It will be found that at last each case must be determined by the circumstances of that particular case. The chancellor was called upon to say whether the possession of appellant was such as should, under the rule, bave put the appellees upon inquiry, and he determined it in the negative, and with that finding we are not dissatisfied. Appellant had permitted, for over ten years, the title to remain of record in her brother. Other mortgages or trust deeds, securing substantially an amount equal to one-half the value of the land, had been executed by the apparent owner, and for some years remained of record, unchallenged by her. She bad permitted Neil McIntyre, who was invested with the legal title, to exercise, so far as the public could see, exclusive control and management of the farm and its products, without objection by her, or the assertion of any right on her own behalf. While she, to all appearances, was simply the housekeeper for her brother, and, so far as shown by the proof, apparently to the world occupied the premises in no other capacity, we are of opinion that, under these circumstances, apellee Ashway was warranted in relying upon the record and the combined declaration of Neil and Daniel McIntyre as to the state of the title, and that there was no such condition of affairs apparent as, in the exercise of common prudence, would suggest that inquiry would disclose any equitable title in appellant to this land.

As to the appellee, Daniel McIntyre, we are of opinion that the decree should be reversed in part. It is true that the evidence is conflicting; but, after careful consideration of it, we are satisfied that the decided weight of the evidence sustains the allegations of appellant's bill of complaint.

It will serve no good end to go into an extended discussion of the evidence, but it will be sufficient to say that appellant and Neil McIntyre both testify to the principal fact that $1,600 of appellant's money went into the purchase, and that the premises first bought were intended for a home for

herself and family; and they are corroborated by Bankin, whose advice appellant sought in reference to the investment, and by others; while the evidence in contradiction consists, in the main, of declarations of appellant, testified to after a considerable lapse of time, and many of them, when when considered in the lighl of the surrounding circumstances, really not necessarily inconsistent with the theory of appellant's case. She is represented as at various times calling the farm Neil's farm; on several occasions saying that she had loaned her brother Neil her money; that she had trusted her brother, and had nothing to show for it, and like expressions. Five witnesses thus testify to conversations of appellant at various times from about the time of the purchase up to within a few years of the litigation. Some of them say she “claimed” to have loaned her money to said Neil, without giving her language, and all testifying to loose conversations, occurring several years before giving their testimony, relating to subjects in which they had no personal interest, and very few of them pretend to give the particular phraseology, or to reproduce the exact conversation in which the language was employed. In many of the declarations testified to, the change of a word, or the form of expressiou, would render it consistent with the theory of appellants claim to the land. Of the same character is the evidence introduced by appellant of declarations of appellee, Daniel McIntyre, alleged to have been made at various times prior to this litigation some of which will be further considered hereafter. This testimony must be received with great caution, and, of itself, would not be sufficient to entitle appellant to recover; but much of it is strongly corroborative of the testimony of appellant and Neil McIntyre, both go to the main fact, and as to Daniel's knowledge of the equitable interest of appellant in the land.

We are satisfied from the evidence that, Daniel McIntyre must have known of the equitable rights of appellant, and of the purpose and object of the purchase, and the character of her occupancy. Appellant testifies that before the purchase, Daniel McIntyre, who was also her brother, wanted to know what she was going to do with her money, and that she then told him, she and her brother Neil contemplated purchasing the Bellows farm for a home, and he approved cf it. Afterwards, when ill, she was worrying about her children, and again her interest in the land was the subject of conversation between them. Neil McIntyre testifies to a full understanding on the part of Daniel of Mrs. Harris' relations to this farm, both before and after the purchase. Shortly after the purchase, in the summer of 1869, Robinson, assessor of taxes, finding the title in Neil's name, told Daniel about it, and told bim that, as he was appellant's elder brother, he ought to advise her what to do, as her money might be lost if Neil should die; to which Daniel replied, in substance, “He guessed they could attend to their own business, if other people let them alone." Another

Own name.

witness testified that Daniel said he knew Mrs. the land, and hold it as tenants in common, in Harris (appellant) had money invested in the proportion of sixteen to five parts, etc., that the place; another that he said, in speaking of the proof does not sustain the bill, and also that the farm, “It is a place Neil and my sister bought case falls within the statute of frauds. This, we she put in some $1,500 or $1,600;” another that he

think, is a misapprehension. It is true the bill alsaid, in speaking of a controversy over a log-leges the fact stated, and that appellant and Neil chain, if Neil had his debts paid, and Annie (ap

McIntyre were tu own the land in the proportion, pellant) had her money out of the farm, Neil that each advanced of the purchase money; that wouldn't have money enough left to buy a log

this was not done, said Neil taking the title in his chain; another, that Daniel said to him that "the

The facts proved show a resulting Bellows farm belonged to his sister, Annie;' and

trust. As said by this court in Smith v. Smith, 85 another that he asked Daniel how he was going to

Ill. II. 189, “it was none the less such a trust beget possession of the farm, and said to him, “You

cause the money was paid in pursuance of a prior koow Mrs. Harris' money is in there," to which

express contract between the parties.” The agreeDaniel replied he knew her money was in the

ment was not that said Neil should convey to ber, land, but she had nothing to show for it; and

but that they should purchase and own the land other witnesses testify to similar statements and

in the proportion that each contributed to the declarations, made at various times between the

purchase money; and when Neil, acting for both, purchase in 1869, and the filing of appellant's bill.

took the title to himself in fraud of her rights, he It is just to say that Daniel McIntyre denies held the title so acquired in trust for her in the having made these statements, and all knowledge same proportion the money she paid bore to the of appellant's baving any interest, legal or equi whole consideration paid. Smith v. Smith, supra; table, in the land; but insists that whatever mon Springer v. Springer, 2 N. E. Rep. 527, opinion ey Neil received of appellant was as a loan. We filed September 28, 1885.) think, however, that the testimony, when all con

A resulting trust arises by implication of law sidered, clearly preponderates in appellant's fa when land has been purchased with the money of vor. Nor can the fact that said Neil McIntyre

one person, and the deed taken to another, who is mortgaged the premises to Bemis and Gillispie

a stranger; that is, not a wife or child, or standmilitate against this view. It is doubtful if appel ing in that relation. Appellant was a stranger lant knew of them prior to the conveyance of the

within this rule. Perry, Trusts, 143; 2 Washb. land to her brother Daniel. There is abundant

Real Prop. 441; 4 Kent, Comm. 306. It cannot be evidence to establish that she knew nothing of material whether the complainant is entitled in any advances by Daniel to Neil on account of this equity to the whole land, or only a moiety. land. Botb of the brothers seem to have sedu

joint purchase is made in the name of one of the lously kept that knowledge from her. Neil

purchasers, and the other pays his share of the swears positively that he purposely kept her in

purchase money, equity will lay hold of the cirignorance of bis acts, and Daniel nowbere testi

cumstance of the title being in one only, and a refies to having told her of his advances, or of any sulting trust will be declared in favor of the other interest be claimed in the land. The witness

for his share. 2 Story, Eq. 1206. The trust here Kelly swears that three years before giving his

arises upon the allegation and proofs of the owntestimony Daniel told him that appellant did not

ership of the funds used in making the purchase, know Neil borrowed money on the land, and he and does not depend upon the contract of the par(Daniel) did not believe she knew it then. After

ties made anterior thereto, and hence is not afNeil had deeded the land to Daniel, and at a time fected by the statute of frauds. Wallace v. Carwhen Daniel received $500 as damages for a right penter, 85 III. 590; Ward v. Armstrong, 84 Ill. 151; of way through the land, he said to the witness McDonald v. Stow, 109 Ill. 44. William Fulton: “Suppose I should meet Annie,

It is next argued that a court of equity will not what would I say to her?” Witness replied, “Tell

enforce this trust because of its staleness, and the her the truth," and Daniel replied, “I can't meet

laches of appellant in asserting her rights. We her.” She testifies that she had no knowledge have already adverted to some of the features of whatever of any advances by Daniel, or of any the case bearing upon this question, and it will be mortgages on the land, or of the conveyance to unnecessary to go over them again. However, it Daniel, until in 1881.

appears that the deed to the Bellows' farm was As between appellant and said Neil the execu made in February, 1869, and possession taken, as tion of these mortgases, to wbich she in no way already described, in the spring of that year, and consented, could not defeat her equitable title; that appellant with her children resided upon the and Daniel having, as we have found, notice of land with her brother Neil until 1881, and, upon her rights at the time he took his deed, stands in his abandoning the farm in the summer of that no better position. It is, however, insisted that year she continued in possession, and still resides the bill proceeds upon an express trust created by thereon. The deed from Neil McIntyre to Daniel agreement; that as it is alleged in the bill of com McIntyre was made March 28, 1879. The bill in plaint that it was expressly agreed and under this case was filed December 16, 1881. It is the stood that appellant and said Neil should purchase settled doctrine that courts of equity will not en

If a


fore resulting trusts after an unreasonable delay that, however, as it may, as late as the fall of in seeking their enforcement, unless there is shown 1879 or 1880,-it does not clearly appear which,an equitable excuse for the delay. Perry, Trusts, when the rent corn was being hauled to Daniel 141; 2 Story, Eq. Jur. 1520.

from this place, she inquired why Daniel was getWhen the statute fis the time within which

ting the corn, and Neil explained to her that he the claim would be barred if asserted at law,

owed Daniel, and might as well pay him off that courts of equity will refer to the statute as the

way as to haul it to market and bring him the means of assertaining the reasonable period in

money. which the bar will be complete in equity; thus, by

We cannot go further into the testimony, but analogy, following the law. In cases, however,

the whole record shows that appellant had great where there is no statute applicable, the time in

confidence in her brother, and trusted implicitly wbich a party will be barred from relief in a court

to his management for her in respect to this propof equity must necessarily depend upon the pe-fu

erty, and that the trust thus reposed was shameculiar circumstances of each case. Castner v.

fully betrayed. Daniel had been told by Robinson Walrod, 83 Il. 171; Kane Co. v. Herrington, 50

of his duty as elder brother to advise appellant so Ill. 239, and authorities cited. These principles

she might not lose her money. He had applied, are sanctioned by an unbroken line of decisions,

in substance, that they could manage their own and it will need the citation of no further author

business if other pe ple would let them alone; ity to sustain then. It is, however, to be observed

and with full knowledge, as we find from the that mere lapse of time, however great, will not

weight of testimony that the money his sister had bar a recovery if an excuse therefor be given

received as the proceeds of a policy on the life of which takes hold upon the conscience of the

her deceased husband had been used in the purchancellor, and is such as renders it inequitable

chase of a farm as a home for herself and children that the bar should be interposed. As we bave

he, in 1875, to secure a debt from Neil to himseen, when Neil McIntyre and appellant moved

self, took a mortgage on this land, and afterwards upon this land known as the Bellows farm, it was

in March, 1879, assumed the trust deed given to understood between them that it had been pur

Becker to secure the Gillispie debt, and took an chased for a home for herself and children, and

absolute conveyance from Neil to himself of all her brother Neil. They were to occupy as one

this land, including the 40-acre tract mentioned in family, wbile owning the land as tenants in com

the bill, without, according to his own showing, The occupancy was in fact under that giving appellant any notice, or saying a word to agreement until in the summer of 1881, when said her upon the subject. It appears, it is true, that Neil abandoned the premises; and while appellant

appellant was told shortly before the making of may have so permitted said Neil to control and the deed from Neil to Daniel that the land was manage the farm that, with the title in his name,

advertised for sale, under the Becker trust deed, she would be precluded from asserting her title as

but it is not shown that she was then told the state against strangers who might become purchasers

of the title, or how, if at all such sale, if made, from or acquire liens thereon through said Neil,

would affect her interest in the land. without notice, yet, as between themselves, the In no view of the case, accepting as we do holding of Neil was in no sense hostile or adverse to what we regard as the preponderance of the eviher. She was in the actual occupancy under an ex dence, was there such laches, even if Daniel is in press stipulation and agreement as to the holding. position to set it up, as would preclude appellant Daniel McIntyre, as we have seen,

bad actual no from enforcing this trust in a court of equity as to tice, not only of her equitable title, but the char the 152.84 acres known as the “Bellows Farm," as acter of her possession-the purpose and object of against the said Neil and Daniel McIntyre. As the purchase,--and occupancy of the land, and he to the 40-acre tract afterwards purchased, as it is took wbatever title he acquired by his deed with alleged by appellant and said Neil, and paid for all the infirmities of the title of his grantor, Neil out of the proceeds of the timber cut from the McIntyre.

Bellows farm, no such equities arise. It does not Again, it is apparent from the record that ap satisfactorily appear that Daniel had any notice of pellant relied implicitly upon her brother Neil any equitable title of appellant thereto, or that from the inception of the transactions between she furnished any portion of the purchase money. them. He, as shown by his own testimony, and This tract was disconnected from the other lands. that of appellant as well, persistently deceived her Appellant never was, so far as shown by the evias to his dealings in respect to this land. We dence, in the actual possession of it. It was inthink it is shown that the fact of his taking the cluded in the deed of March 26, 1879, from Neil to deed to himself, the execution of the trust deed to Daniel, and we think, under that deed, he took Becker, the mortgaging to Daniel in 1878, and the the title disincumbered by any equities appellant sale and conveyance to Daniel in 1879, was, by might have had therein. artitice and the most shameless duplicity kept We are of opinion that the decree of the circuit from her knowledge. Nor does it seem quite court should have found appellant equitably enclear that Daniel McIntyre was wholly guiltless titled to 16-21 parts of said tract of land known as of the deception practiced upon appellant. Be the “Bellows Farm," and conveyed by Sarah Bel

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