Cardiff v. Marquis
| Citation | 114 N.W. 1088,17 N.D. 110 |
| Decision Date | 01 February 1908 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dickey county; Allen, J.
Action by Ida M. Cardiff against Sidney J. Marquis and others. Judgment for plaintiff, and defendant Jessie E. Morris appeals.
Affirmed.
E. E Cassels and Bucklin & Bucklin, for appellant.
No resulting trust arises from an instrument of conveyance and reciting a consideration. 2 Pomeroy's Equity Jurisprudence paragraphs 1031, 1033 and 1035. 27 Am. & Eng Enc. Law 52; Gee v. Thwaikill, 45 Kan. 173; Moran v Somes, 154 Mass. 200;
Trust must arise at time of conveyance. Dick v. Dick 172 Ill. 578; Reed v. Reed, 135 Ill. 482; Koster v. Koster, 149 Ill. 195.
Where there is an express trust there can be no resulting or implied one. Kingsbury v. Burnside, 58 Ill. 310; Stevenson v. Crapnell, 114 Ill. 19; Mayfield v. Forsyth, 164 Ill. 32; Bispman's Prin. of Equity (5th Ed.) par. 80, p. 136; Gibson v. Forte, 40 Miss. 792 Lowry v. McGee, 3 Head 274; Snyder v. Wolford, 33 Minn. 175; Farnham v. Clements, 31 Me. 426; Beers v. Beers, 22 Mich. 42; Hanson v. Berthelsen, 19 Neb. 433; Philbrook v. Delano, 29 Me. 410.
Parol evidence is inadmissible to establish an express trust. Dick v. Dick, supra; Goodwin v. Hubbard, 15 Mass. 218; Montgomery v. Craig, 128 Ind. 48; Feeney v. Howard, 12 Am. St. Rep. 162; Patton v. Beecher, 62 Ala. 579; Kelley v. Karsner, 72 Ala. 106; Dear v. Dear, 6 Conn. 284; Mescall v. Tully, 91 Ind. 96; Columbus, etc. Ry. v. Braden, 110 Ind. 558; Haine v. Robinson, 72 Iowa 735.
James M. Austin and Youker & Perry, for respondents. W. S. Lauder, of counsel.
An express trust may be created by several papers provided they are clearly connected, and indicate the nature of the trust. Combs v. Brown, 29 N. J. Law 36; Augustus v. Graves, 9 Barb. 595; Kingsbury v. Burnside, 58 Ill. 310; Moore v. Pickett, 63 Ill. 158; Townsand v. Kennedy, 6 S.D. 47; Malin v. Malin, 1 Wend. 625; Throp v. Hatch, 3 Abb. Prac. 23.
Constructive trust in real property can be proved by parol. Kingsbury v. Burnside, supra; Lantry v. Lantry, 51 Ill. 458; Barrell v. Hanrick, 42 Ala. 60; Perry on Trusts, section 166; Christy v. Sill, 95 Pa. 380; Brinson v. Brinson, 7 Am. St. Rep. 189; Wood v. Rabe, 48 Am. Rep. 640; Clark v. Haney, 50 Am. Rep. 536; Brown on the Statute of Frauds, section 95; Goodwin v. McMinn, 74 Am. St. Rep. 703; Seichrist's Appeal, 66 Pa. 237; Highberger v. Stiffler, 83 Am. Dec. 593; Whitney v. Hay, 181 U.S. 77; Storey's Equity, section 312; Collins v. Tillou's Adm., 26 Conn. 368; Linsley v. Lovely, 26 Vt. 123; Oliver v. Oliver, 1 Am. Dec. 257; 4 Lawson's Rights, Remedies and Practice, 3392; 3 Pom. Eq., section 1052, 1053.
Confidential relations carefully scrutinized to protect against undue advantage. Archer v. Hudson, 7 Beav. 551; Houghton v. Houghton, 15 Id. 278; Wright v. Vanderplank, 8 DeG., M. & G. 133.
Constructive trust may be shown by parol. Alaniz v. Casenave, 27 P. 521; Bartlett v. Bartlett, 19 N.W. 691; Koefoed v. Thompson, 102 N.W. 268; Butler v. Hyland, 26 P. 1108; Bowler v. Curler, 26 P. 226; Gruhn v. Richardson, 21 N.E. 18; Benjamin v. Mattler, 32 P. 837; Irwin v. Dyke, 1 N.E. 913; Hackworth v. Zeitinger, 48 Mo. 732; Patterson v. Ware, 10 Ala. 444; Middlesex Co. v. Osgood, 70 Mass. 447; Engelhorn v. Reitlinger, 25 N.E. 297; Wiseman v. Thompson, 63 N.W. 346; Conner v. Hingtgen, 19 Neb. 472; Porter v. Wormser, 94 N.Y. 431; Howe v. Chesley, 56 Vt. 727; Wells v. Monihan, 29 N.E. 232.
This is an action brought by the plaintiff to recover the sum of $ 2,880, the proceeds of the sale of 160 acres of land alleged to have been owned by her. The complaint alleges her ownership of the land, and that on October 30, 1904, she executed and delivered to her father, Edward L. Marquis, a deed of said 160 acres of land. The complaint further alleges that the said deed was without any consideration whatever, and was made in trust for the plaintiff for the purpose of selling and conveying said land in trust for her; that said land was to be sold to one Malander for said sum, and that said sum was to be paid by said Edward L. Marquis to the plaintiff as soon as said land was sold to said Malander; that on November 9th said Edward L. Marquis did sell and convey said land to said Malander and deposited the deed to said land in escrow with the First National Bank of Oakes, N.D., to be delivered to said Malander as soon as the purchase price therefor was paid, and that said First National Bank did thereafter deliver said deed to said Malander; that before said sum of money was paid by said bank to said Edward L. Marquis he died; that the defendant Crabtree is the administrator of the estate of said Edward L. Marquis; and that said sum of money was paid to him as such administrator by the First National Bank. The complaint further alleges that the plaintiff is the owner of said sum of money, and entitled to receive same. The other defendants, Jessie E. Morris and Sidney J. Marquis, are the other heirs at law of said Edward L. Marquis. They are made defendants as such. The relief demanded in the complaint is as follows: First. That said sum of $ 2,880 which was received for said land be declared to be the property of this plaintiff, and that the same be declared and adjudged to be a trust fund for the use and benefit of the plaintiff. Second. That each of said defendants be debarred and estopped from asserting any right, title, claim, or interest to said fund. Third. For general relief. The defendant Sidney J. Marquis did not answer. The defendant Jessie E. Morris answered and alleged that said Edward L. Marquis was the owner of said land when conveyed to Malander, and that the deed from the plaintiff to him was not a deed in trust for said plaintiff, but that plaintiff's deed to said Edward L. Marquis was made to carry out the terms of a contract by which the deed from said Edward L. Marquis to her was held in trust for said Edward L. Marquis. In the district court this action and another action were submitted under the same evidence under a stipulation that each case should be decided upon the evidence in the record applicable to the case. This other action was brought by Sidney J. Marquis, who is a defendant in this action, and who is a brother of the plaintiff, and was made a defendant in this action as an heir at law of said Edward L. Marquis. The said Sidney J. Marquis brings this action to have the proceeds of another 160 acres of land alleged to have been owned by him declared to be a trust fund, by reason of similar facts as are alleged in the present action. The district court found in favor of the plaintiffs in each of said actions, and adjudged that they were entitled to the proceeds of the sale of said land, and that the defendant Jessie E. Morris, and the defendant Crabtree, as administrator, had no right to the possession of said money. It is stipulated that the following facts are true: That said Edward L. Marquis was the owner of the land involved in this suit on October 7, 1902, and that he conveyed the same to this plaintiff on said day; that the consideration named in that deed was the sum of $ 2,880; that the record title to this land remained in this plaintiff until October 30, 1904; that on said day she conveyed said land to said Edward L. Marquis; that the consideration recited in this deed was the sum of $ 2,880, and that on November 9, 1904, said Edward L. Marquis conveyed this land to one Malander; that in the deed to Malander was also conveyed a tract of 160 acres of land, the record title of which was in Sidney J. Marquis, and had been for twenty years; that the consideration named in this deed was the sum of $ 8,467. It was further stipulated that the land involved in this suit was of the value of $ 17.50 per acre when the same was deeded to said Edward L. Marquis, and that the 160 acres involved in the suit of Sidney L. Marquis was valued at $ 18.50 per acre. It was further stipulated that said Sidney J. Marquis conveyed the 160 acres of land involved in this action to Edward L. Marquis on October 24, 1904, and that a consideration of $ 2,695 was named in that deed; further, that the proceeds of the sale of said 480 acres of land came into the hands of said bank, and that Edward L. Marquis died before the money was paid by said bank to him. It is also stipulated that said sum of $ 8,467 was paid by said bank to said administrator, and that said sum was the entire proceeds of the sale of said 480 acres of land to said Malander. It is shown in the record by undisputed evidence that no consideration whatever passed between said E. L. Marquis and said Sidney J. Marquis for the conveyance to said E. L. Marquis by these two plaintiffs. It is also shown by undisputed evidence that the deeds to said Edward L. Marquis were absolute in terms, and contained no recitals as to the alleged trust character of said deeds. The trial court made findings of fact and conclusions of law in favor of the plaintiff in each of said actions, and adjudged that each of said plaintiffs was entitled to a judgement against the administrator for the stipulated value of the land. Judgments were entered pursuant to such findings, and the defendant Jessie E. Morris appeals from these judgments, and demands a trial de novo in this court.
It is the contention of the plaintiff that she is entitled to the proceeds of the sale of her 160 acres of land on account of the fact that it was agreed between her and said E. L Marquis that the deed to him was made in trust for herself and was given for the purpose of enabling said E. L. Marquis to sell his own land more...
To continue reading
Request your trial