Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.
The decree, which is before us on defendant's appeal, adjudges that the defendant holds in trust for the plaintiff, who is his former wife, whatever interest he may have in the real estate known as 198 Elm Avenue, Teaneck; and orders him forthwith to convey to her all his right, title and interest therein. The plaintiff does not assert an express trust that can be proved in the manner required by the statute of frauds; there is no evidence of a constructive trust based on fraud. The question is whether there is a resulting trust. The basic facts are undisputed.
The parties were married April 2, 1945. The groom was an impecunious school teacher, while the bride had assets worth a few thousand dollars, and her mother, Mrs. Watson, enjoyed a comfortable estate. Mrs. Watson planned to give her daughter a house in Oak Park, Illinois, as a wedding
gift. But, at the groom's suggestion and at the bride's request and urging, she deeded the property to them both and not to her daughter alone. The deed bears date three weeks after the wedding. The grantees never occupied this house but made their home on Long Island. Early in 1947 they found a house that they liked and wished to buy -- the property in Teaneck which is the subject of the decree. Plaintiff reported this to her mother, who agreed to advance the purchase money, or the greater part of it, as a loan to be secured by the Oak Park house.
The purchase price of the Elm Avenue premises was $10,800, which was paid by checks drawn on a joint bank account of Mr. and Mrs. Rayher -- $100 on March 20, 1947, $1,000 on April 1, and the balance, $9,700, May 5, upon delivery of the deed. The first two payments were made out of the proceeds of a mortgage which plaintiff owned, the large final payment came out of the loan of $9,800 made by Mrs. Watson by check to the order of her daughter, and deposited by the latter in the joint account April 3, 1950. Mrs. Watson was soon repaid $8,000 out of the proceeds of sale of the Oak Park property, and several hundred dollars that came probably from plaintiff's separate estate. The balance of the debt she forgave as a gift to plaintiff.
The contract for the Teaneck property was executed by both defendant and plaintiff as purchasers, and the deed ran to them as man and wife, so that they became seized as tenants by the entirety.
After living a couple of years in Teaneck, plaintiff went to Chicago to be with her mother. There she instituted suit for divorce and obtained her final decree January 2, 1950.
Respondent devotes much of her argument to the law of gifts; to the rule that donative intent is an essential element of a gift, and to analysis of the proof leading to a conclusion that Mrs. Watson did not intend to make a gift to her son-in-law of any interest in the Oak Park property. But the evidence shows beyond cavil that Mrs. Watson intentionally and not by mistake executed and delivered the deed which conveyed the whole title, legal and equitable, to "Myra
Watson Rayher and Edward Rayher, her husband." The grantor expected to receive no consideration from either of them and in fact received none.
Under the law of Illinois, where title to property is taken jointly by husband and wife, their legal interest is equal and their equitable interest is presumed also to be equal. The equality may be upset by proof of an express trust, or a constructive trust, or a resulting trust. A resulting trust arises at the moment legal title vests in the man and his wife, or never arises at all. A resulting trust is not based on agreement but is raised by the law itself upon the facts proved. The evidence required to overcome the presumption of equality and to establish a resulting trust must be clear and convincing. Indeed, it has been said where parol evidence alone is relied upon to prove the trust, it must be convincing beyond a reasonable doubt. The circumstance that one spouse paid the greater part of the consideration for the property, is not enough to disturb the equality of interest of the two parties. Partridge v. Berliner , 325 Ill. 253, 156 N.E. 352 (Sup. Ct. 1927); Anderson v. Anderson , 339 Ill. 400, 171 N.E. 504 (Sup. Ct. 1930); Walker v. Walker , 369 Ill. 627, 17 N.E. 2 d 567 (Sup. Ct. 1938); Nickoloff v. Nickoloff , 384 Ill. 377, 51 N.E. 2 d 565 (Sup. Ct. 1943). All this is familiar doctrine to the New Jersey lawyer, for our law is substantially the same in this respect to that of Illinois.
We have no hesitancy in determining that by Mrs. Watson's deed the plaintiff and defendant each became vested with an interest in the land equal to that of the other. The strong presumption of equality which springs from the form of the deed is not rebutted by any evidence ...