Arnold v. Hall

• Citation: 72 Wash. 50,129 P. 914
• Court: Washington Supreme Court
• Decision Date: 08 February 1913
• Parties: ARNOLD v. HALL.

129 P. 914

72 Wash. 50

ARNOLD v. HALL.

Supreme Court of Washington

February 8, 1913

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by Nathan A. Arnold against Minnie M. Hall. Decree for plaintiff, and defendant appeals. Reversed, with direction to enter a judgment for defendant.

Jas. J Anderson, of Tacoma, for appellant.

Thos M. Vance, of Olympia, for respondent.

GOSE J.

On the 24th day of May, 1911, the plaintiff conveyed to his mother, Sarah E. Arnold, by a deed absolute in form with covenants of warranty, a tract of land containing 20 acres, situate in Thurston county in this state. On the 5th day of June following Mrs. Arnold conveyed the property to the defendant, her daughter, by a deed of general warranty. Mrs. Arnold died on the 29th day of June following. On the day succeeding this action was commenced; the plaintiff contending that he conveyed the property to his mother in trust, upon her promise to reconvey it to him. There was a decree for the plaintiff. The defendant has appealed.

There was nothing in the deed to show a trust, and there was no written declaration of a trust. It will be observed that the appellant and the respondent are sister and brother. The basis of the respondent's claim, as alleged in the complaint, is that he was the owner of the land when he made the conveyance to his mother, and had then owned it for about 12 years; that she was then 'infirm in mind and body,' and believed that his recent marriage had transformed the property from separate to community property; that by reason of her 'said infirmity' she believed that he would be deprived of his right thereto as his separate estate, and that the transformation 'might in the future work injury and damage' to him; that she believed that such result might be avoided by a conveyance of the property to her and the reconveyance by her to him, and 'that yielding to the solicitations of his mother, and to relieve her anxiety and uneasiness, plaintiff conveyed the said property, as described, to her, and had his wife to join in said conveyance; that these were the sole considerations passing for the said conveyance; and that at the time of its making it was agreed and understood that his mother, Sarah E. Arnold, would promptly reconvey the said property to plaintiff.' It is further alleged that the appellant had knowledge of these facts at the time of their occurrence. A general demurrer to the complaint was overruled. The testimony submitted by the respondent is to the effect that the mother promised to reconvey the property by 'a gift or legacy.' When the plaintiff rested, a demurrer to the evidence was likewise overruled.

The demurrer to the evidence should have been sustained. The trust alleged and proven was an express trust. 'Direct or express trusts are created by the direct or express words of a grantor or settlor.' 1 Perry on Trusts (6th Ed.) § 73. The distinction between express and implied trusts is pointed out by Beach on Trusts and Trustees (volume 1, p. 172) as follows: 'A fundamental distinction between express and implied trusts is that the former, presumably, are created by the voluntary or free and deliberate act of the parties, that they are in accordance with equity, and that by the terms of their creation they are permanent in their operation; while in the latter, from the nature of the case, the element of permanency is absent, and that of rightfulness, so far as relates to the intention of the responsible party, and of freedom of action as well, may be altogether lacking. The essential idea of an implied trust involves a certain antagonism between the cestui que trust and the trustee, even where the trust has not arisen out of fraud, nor out of any transaction of a fraudulent or immoral character.'

The case is controlled by Spaulding v. Collins, 51 Wash 488, 99 P. 306; Kinney v. McCall, 57 Wash. 545, 107 P. 385; 340; Holmes v. Holmes, 65 Wash. 572, 118 P. 733, 38 L. R. A. (N. S.) 645; Kalinowski v. McNeny, 68 Wash. 681, 123 P. 1074. Our statute (Rem. & Bal. Code, § 8745) provides: 'All conveyances of real estate or of any interest therein, and all contracts creating or evidencing any encumbrance upon real estate shall be by deed.' The cases cited settle the law in this state in this: That a resulting trust can, and that an express trust cannot, be proven by parol testimony; the latter being within the prohibition of the statute quoted. In Spaulding v. Collins one of the grantors continued to reside upon the premises without paying rent, for more than 20 years after they had conveyed the property by a deed absolute in form; there being no written declaration of trust, either in the deed or otherwise. More than 20 years after conveying the property, the grantors brought an action, contending that the grantee was a trustee ex maleficio, or, if not, that a resulting trust had been created. The facts relied upon to establish the trust, and the view of the court as to the nature of the trust created may be best stated in the language of the opinion. It says: 'We are satisfied from the evidence of Mr. J. M. Colman, who was the only witness who testified as to what the trust agreement really was, that the trust, if any, was an express trust, and not a trust ex maleficio, or resulting trust. This witness testified that Mrs. Spaulding wanted his son to take the deed, but that witness objected. 'So she spoke of Mr. Collins. I told her I would see him, and I saw Mr. Collins about it. * * * There was no talk about his buying the property. She did not talk about his buying the property. What she wanted was to have it deeded over to him until she could pay his debts. * * * She was afraid, she said, that her husband was running bills, and they would be after her for the money, and it might come against her property; that was the reason she wanted to get rid of it. She wanted it turned over to somebody that would protect her.' We think this evidence clearly shows an express trust, which cannot be established by parol. Holly Street Land Co. v. Beyer, 48 Wash. 422, 93 P. 1065. * * * The rule is...