Schulz v. Schulz

Citations

• 138 Ill. 665

Syllabus

<p>1. Chancery—finding for complainant is a finding against defendant. On bill to enforce a resulting trust, a finding that a resulting trust exists in favor of the complainant, is necessarily a finding that the defendant has no estate of homestead in the premises.</p> <p>2. Chanoeey practice—reference to mastei—discretion of court. On a bill to enforce a resulting trust, and for an accounting by the defendant, the complainant, on the hearing, abandoned all claim for moneys due on an accounting, and took a decree establishing the trust. The defendant filed no cross-bill seeking affirmative relief: Held, no error-in not referring the cause to the master to state an account, and that it was purely discretionary with the court whether to refer the question of a resulting trust to the master.</p> <p>3. Same—affirmative relief to defendant—cross-bill. Where the defendant in a bill to declare and enforce a resulting trust fails to file a. cross-bill, he will not be entitled to any affirmative relief in respect to matters of accounting between him and the complainant.</p> <p>4. Chancery pleading—failure to malte proper defendants. Where a bill in chancery makes no allegation that the defendant has a wife,, if the defendant is prejudiced by not making her a party he should plead that fact, otherwise the court can not act upon the casual remarks of witnesses in that respect, and determine therefrom that, proper parties are not made defendants.</p> <p>5. Practice in the Supreme Court—error will not always reverse. On bill to declare and enforce a resulting trust, the court, finding for-the complainant, decreed that the legal title should vest absolutely and forever in complainant, “free and clear of any right and estate of ■ dower and homestead.” The defendant’s wife was not made a party, and there was no allegation in the bill or answer in reference to defendant’s wife, or her right of homestead or dower: Held, that if it was error to find against the supposed rights of the