Irwin v. Dyke

Citations

• 109 Ill. 528

Syllabus

<p>1. Partition by parol—confirmation in chancery. Where two persons having bought a tract of land, each having an equal interest, make a verbal partition, dividing the premises equally, each taking possession of and using his part of the same, and no unfairness is shown, a decree confirming such partition after the death of one of the parties, is proper.</p> <p>2. Trust—whether it exists. Where a person buys land in his own name, and after his death his son sets up in defence of a partition between himself and another heir, that the legal title was held by the father in trust for him under a parol agreement, if the proof of the trust be such that the alleged trust could not have been enforced against the father in his life, it can not be as between the heirs. To enforce such an alleged trust against the other heir, it must be upon the clearest and most satisfactory evidence.</p> <p>3. Cross-bill—whether necessary. Where a person dies holding the legal title to a tract of land, on bill for partition between his heirs at law, consisting of a son and daughter, the question whether the father acquired and held the legal title in trust for the son alone, can only be tried on cross-bill filed by the son, and it is error to give him the entire tract merely upon his answer claiming to be the sole owner of the equitable title. That is affirmative relief in the strictest sense, and can not be granted except on cross-bill.</p>