dissenting:
When a constructive trust is claimed the evidence must be clear and convincing and must establish certainly and definitely the terms of the alleged trust. In this case Dorothy, Fred, Louis and W. O. Edwards were the only persons present at the time the deed was executed, and Fred has since died. The only testimony supporting the decree is that of Dorothy, arid this is directly contradicted not only by Louis but also by the testimony of her own attorney in the matter, W. O. Edwards. It is true, there are subsequent statements made by Louis in reports to government agencies and in documents relating to other different matters, which tend to disclose a recognition of some interest remaining in Fred. But such statements are at least balanced by evidence of subsequent statements by Fred, made with no apparent purpose to serve thereby, to the effect that he had conveyed all his interest to his brother. It is manifest that the trust was not established by evidence which is clear, definite, and unequivocal in character. See Neagle v. McMullen, 334 Ill. 168.
Fred lived for more than ten years after the deed was delivered, and so far as the record discloses he never indicated any dissatisfaction with the transaction, never claimed he had been overreached by his brother at the time he executed the deed, and never even expressed regret at having conveyed his interest in the property. If he felt he had been imposed upon there was ample time during his lifetime, if he so desired, to have invoiced the aid of the courts and to have righted any wrong he may have suffered. This, however, he did not do. On the contrary, during all the years up to the time of his death he recognized the farms as belonging solely to his brother, and on at least one occasion expressed satisfaction with having cleared up his debts by the conveyance. Under such circumstances, the evidence introduced by plaintiffs, even though tending in some degree to show an oral agreement to hold in trust, falls far short of the standard required to set aside a deed for fraud or undue influence.
Fven if it is assumed, for the purpose of this case, that the evidence sufficiently shows the existence of a verbal agreement to reconvey after the debts to the bank had been satisfied from the proceeds of the farms, the decree would still not be justified, for the agreement would be within the Statute of Frauds. Defendants having pleaded the statute, it was incumbent upon plaintiffs to establish by clear and convincing evidence that Fred was induced to enter the transaction through some fraud or undue influence on the part of Louis. There is no proof in this record that fraudulent representations were made or undue means resorted to by Louis to influence Fred and Dorothy to execute the deed. The matter was fully discussed at and prior to the meeting at which the deed was signed, the conveyance was made in the presence of Dorothy’s attorney, whom she had consulted with reference to the matter, and there is no dispute that Fred was fully competent to transact business. If, then, an oral understanding or agreement existed as claimed by plaintiffs, it could only show the .existence of an express trust, as to which relief could not be granted without disregarding entirely the Statute of Frauds. (Williams v. Williams, 180 Ill. 361.) The rule is too settled to require the citation of authority that an express trust between a grantor and grantee of land, where the grantee is to hold the land in trust for the grantor or is to reconvey to him on a certain contingency, is invalid under the statute unless evidenced by some writing signed by the grantee.
Plaintiffs contend the evidence sufficiently shows the existence of a fiduciary relationship between Fred and Louis, with the latter as the dominant party, and they urge the rule that in such cases the burden rests upon the dominant party to show that the transaction was fair and equitable and did not proceed from undue influence. The defendant Louis, on the other hand, maintains a fiduciary relationship was not shown to exist in the transaction of February 23, 1937. It is true, the mere facts that the parties are brothers and tenants in common, and that they operate the farm land as partners, do not of themselves show that a fiduciary relationship exists in a transaction where the dealing is at arm’s length. In the absence of a showing that one cotenant reposed trust and confidence in the other, there is no presumption that a conveyance between them results from fraud or undue influence. (McDonald v. McDonald, 408 Ill. 388.) It is, however, unnecessary in the case at bar to decide this question. Here, again, we may assume for the present purpose that a fiduciary relationship was established by the evidence and that Louis was shown to be the dominant party. For, even under such circumstances, the execution of the deed must be held valid if it appears it was executed with full knowledge of the nature and effect of the conveyance and resulted from the deliberate, voluntary and intelligent desire of both grantee and grantor and not through influence engendered by their relationship. (Winkelman v. Winkelman, 307 Ill. 249; Valbert v. Valbert, 282 Ill. 415.) The existence of a fiduciary relationship alone is not the basis for raising a constructive trust, but there must in addition be the second factor of undue influence. While there is a presumption that the second factor is present where no showing to the contrary is made by the grantee, the conveyance will not be set aside if it is shown that no undue advantage of the grantor was taken by means of the fiduciary relationship. (Peters v. Meyers, 408 Ill. 253, 259.) The great weight of the evidence here shows that the deed was executed as a result of the voluntary desire of the grantors and not because of any undue influence exerted upon them by Louis.
In the case at bar, Dorothy Bremer and her children were the only material witnesses testifying on plaintiffs’ behalf, whereas her foimer attorney’s testimony supported that of defendant Louis Bremer, and several prominent and disinterested witnesses testified for defendants as to subsequent statements made by the decedent. The record discloses that the amount of Fred’s liabilities discharged by Louis was substantially equivalent to the 1937 value of Fred’s interest in the property, • and that no complaint of the transaction was made until after Fred’s death and the market value of real estate had appreciably risen.
The evidence, in the case at bar, shows that the transaction did not arise out of the fiduciary relation but from Fred’s desire to relieve himself of his debts; that it took place at arm’s length in the office of Dorothy’s attoimey; that it was fair and equitable at the time it was entered into; and that Fred did not thereafter complain of any abuse of confidence or claim the right to a reconveyance.
Not unmindful of the rule that, when the evidence is conflicting, the decree of the chancellor will not be reversed unless manifestly against the weight of the evidence, I am of the opinion that the present decree is against the manifest weight of the evidence. Where it is sought to establish a constructive trust by parol testimony, the proof must be clear, convincing, and so strong, uneqeuivocal and unmistakable as to lead to but one conclusion. If the evidence is doubtful or capable of reasonable explanation upon theories other than the existence of the trust, it is not sufficient to support a decree declaring and enforcing the trust.