Ewing v. Clark

• Decision Date: 08 June 1896
• Docket Number: 9984--(120)
• Citation: 67 N.W. 669,65 Minn. 71
• Parties: GEORGE W. EWING v. JOHN CLARK and Wife
• Court: Minnesota Supreme Court

67 N.W. 669

65 Minn. 71

GEORGE W. EWING v. JOHN CLARK and Wife

Nos. 9984--(120)

Supreme Court of Minnesota

June 8, 1896

Action for partition in the district court for Ramsey county.

It was admitted that defendant, John Clark, was the owner of an undivided fourteen-fifteenths interest in the land. Plaintiff claimed title to an undivided one-fifteenth interest as sole heir and legal representative of George W. Ewing, Jr., under the deed of trust referred to in the opinion, which conveyed with other property, the one-fifteenth interest in controversy and which was executed December 31, 1863, by his father, George W. Ewing, Jr., to George W. Ewing, Sr., the father of the grantor,

"for the uses and purposes following, to-wit: First. The said George W. Ewing, trustee as aforesaid, shall sell and convey all or such part or parts of the real estate hereby conveyed to him as he shall deem most advantageous for the interest of the trust hereby created, and the proceeds thereof to reinvest for the same purpose for which this trust is created or to expend the same in improving such of the property hereby conveyed as the said trustee shall deem most advisable and for the purpose of creating an income therefrom. Second. That of the income and proceeds arising under this trust a reasonable sum such as the trustee shall deem sufficient shall be expended in the maintenance of the said George W Ewing, Junior, and the remainder, if any, after paying taxes insurance and necessary expenses, shall be expended for the benefit of the trust when and at such times as the trustee shall deem best. Third. Should the said trustee die before his ward, that Jesse Halliday, of San Francisco, Cal., or upon his refusal to act such person as the court of common pleas of Allen County, Indiana, shall appoint, shall take up and continue this trust. Fourth. That upon the death of the said George W. Ewing, Junior, the property hereby placed in trust shall descend to the legal representatives of the said George W. Ewing, Junior, provided, however, that William G Ewing, Junior, the adopted son of said William G. Ewing deceased, shall under no circumstances whatever inherit or be entitled to any part or parcel thereof."

March 1, 1866, George W. Ewing, Sr., the trustee, executed a deed whereby he reconveyed to George W. Ewing, Jr., all the unsold property, including the undivided one-fifteenth interest in controversy, for the purpose of terminating the trust. Defendant John Clark claimed to be vested with the title of George W. Ewing, Jr., by mesne conveyances executed after the deed of reconveyance.

The court, Egan, J., found in favor of defendants, and from an order denying a motion for a new trial, plaintiff appealed. Affirmed.

Order affirmed.

John B. & E. P. Sanborn, for appellant.

Upon the execution of the trust deed, a future vested estate in the heirs of George W. Ewing, Jr., was created, in the one-fifteenth of the lots in controversy. G. S. 1858, c. 31, §§ 9, 10, 11, 12, 13; Ewing v. Warner, 47 Minn. 446, 50 N.W. 603; Ewing v. Shannahan, 113 Mo. 188, 20 S.W. 1065; Ewing v. Jones, 130 Ind. 247, 29 N.E. 1057. The trust expressed by this deed was authorized by the statute. G. S. 1858, c. 32, § 11, subd. 5. The whole estate in the land vested in the trustee, subject only to the execution of the trust, and the heirs of George W. Ewing, Jr., had the absolute right to the execution of the trust at all times after the deed was made, and George W. Ewing, Jr., had no right or interest in the land which he could enforce, because it was entirely discretionary with the trustee what sum he should expend for his maintenance. G. S. 1858, c. 32, § 16; Ewing v. Shannahan, supra; Ewing v. Warner, supra; Jones v. Chandler, 40 Ind. 588; 1 Perry, Trusts, § 315; Locke v. Barber, 62 Ind. 585; North v. Philbrook, 34 Me. 532; Neilson v. Lagow, 12 How. 98; Cleveland v. Hallett, 6 Cush. 403. The words "legal representatives" in the trust deed mean heirs. Ewing v. Warner, supra; Ewing v. Shannahan, supra; Ewing v. Jones, supra; Farnam v. Farnam, 53 Conn. 261, 2 A. 325, and 5 A. 682; Dunrow v. Walker, 2 Dallas, 205; Jennings v. Gallimore, 3 Vesey, Jr. 146.

This estate, thus vested in plaintiff, could not be divested by the deed made by the trustee. G. S. 1858, c. 32, § 21. The future estate in the heir, who was then in being, could not be destroyed, either by a revocation of the grantor in the trust deed or by a violation of the trust by the trustee or by both. Ewing v. Warner, supra; Ewing v. Jones, supra; Ewing v. Shannahan, supra; 1 Perry, Trusts (4th Ed.) § 104; Haynes v. Kershow, 1 Sandf. Ch. 258, 262-269; Wright v. Miller, 4 Seld. 9, 22, 27; Petre v. Espinasse, 2 M. & K. 496; Bill v. Cureton, 2 M. & K. 503; Ellison v. Ellison, 6 Ves. 656; Kekewich v. Manning, 1 De Gex, M. & G. 176; Sewall v. Roberts, 115 Mass. 262; Keys v. Carleton, 141 Mass. 45, 6 N.E. 524; Isham v. Delaware, L. & W. R. Co., 11 N.J.Eq. 227; Gaylord v. City of Lafayette, 115 Ind. 423, 17 N.E. 899; Wright v. Moody, 116 Ind. 175, 18 N.E. 608. See Russell v. Russell, 36 N.Y. 581-586, and cases there cited; 2 Perry, Trusts, § 769. No power of revocation was contained in the trust deed, and its author could not revoke it. It was a complete executed trust, and, being perfect and complete, it must be enforced, whether it was a voluntary trust or made upon a valuable consideration. Ewing v. Jones, supra; Gaylord v. City of Lafayette, supra; Wright v. Moody, supra; Waterman v. Morgan, 114 Ind. 237, 16 N.E. 590; Ewing v. Shannahan, supra; Leeper v. Taylor, 111 Mo. 312, 19 S.W. 955; Lane v. Ewing, 31 Mo. 75; Pomeroy, Eq. Jur. (2d Ed.) §§ 966, 997.

The parol evidence offered by the defendants, to show that at the time this deed was made it was a part of the agreement between the parties that the trust was temporary simply and that the deed was revocable at the pleasure of the grantor, was incompetent because it contradicts the express terms of the deed itself, adds additional terms and destroys the writing. Thompson v. Libby, 34 Minn. 374, 26 N.W. 1; De Witt v. Berry, 134 U.S. 306, 10 S.Ct. 536; The Reeside, 2 Sumner, 567, Fed. Cas. No. 11,657; 1 Greenleaf, Ev. § 275; White v. National Bank, 102 U.S. 658; Metcalf v. Williams, 104 U.S. 93; Martin v. Cole, 104 U.S. 30. Even if declarations had been made at the time of the execution of the deed, and in the presence of William A. Ewing, his testimony as to the same would not have been admissible. Dodge v. Kiene, 28 Neb. 216, 44 N.W. 191; Nichols v. Crandall, 77 Mich. 401, 43 N.W. 875; American Surety Co. v. Thurber, 121 N.Y. 655, 23 N.E. 1129; Pittmann v. Burr, 79 Mich. 539, 44 N.W. 951. See Miller v. Butterfield, 79 Cal. 62, 21 P. 543; Bryan v. Idaho Quartz Min. Co., 73 Cal. 249, 14 P. 859; McCormick H. M. Co. v. Wilson, 39 Minn. 467, 40 N.W. 571; Wallace v. Berdell, 97 N.Y. 13. The declarations of a grantor made after he has parted with the title are not admissible to defeat the deed or to affect the title or rights fixed by the deed or acquired by others under it. See Burt v. McKinstry, 4 Minn. 146 (204); Zimmerman v. Lamb, 7 Minn. 336 (421); Howland v. Fuller, 8 Minn. 30 (50); Derby v. Gallup, 5 Minn. 85 (119); Frink v. Roe, 70 Cal. 296, 11 P. 820; Smith v. McElyea, 68 Tex. 70, 3 S.W. 260-261.

Fraud, oppression, mistake and undue influence cannot be inferred from an absence in the trust deed of a power of revocation. Barber v. Thompson, 49 Vt. 213; G. S. 1858, c. 34, § 36.

Stevens, O'Brien, Cole & Albrecht, for respondents.

If the instrument on its face be construed as plaintiff claims, a court of equity would set it aside for fraud and mistake in its execution, and the parties themselves having revoked it by the instrument of March 1, 1866, the court will sustain their action, even though no power of revocation was stated in the instrument. Evidence tending to show fraud is admissible in cases where fraud is the issue, although it may vary, add to or contradict the terms of the written contract. 1 Whart. Ev. § 931; 1 Greenleaf, Ev. § 284; 1 Story, Eq. § 200; Chitty, Cont. 119; Gatling v. Newell, 9 Ind. 572. Equity will often relieve against improvident and mistaken contracts upon the ground of constructive fraud, where no fraud in the active or opprobrious sense can be charged. Pomeroy, Eq. Jur. §§ 953-955; Kerr, Fr. & M. 45, 150; Story, Eq. Jur, §§ 307, 308, 309. The relation of parent and child has always been regarded as one of confidence. Story, Eq. Jur. § 309. See, also, Id. 307, 308; Kerr, Fr. & M. 179, 180. See Pomeroy, Eq. Jur. §§ 927, 928, 948, 962. Parol evidence is admissible. Kerr, Fr. & M. 386, 387; Pomeroy, Eq. Jur. §§ 858 et seq., 962; Wright v. Vanderplank, 8 De Gex, M. & G. 133-146; Ashton v. Thompson, 32 Minn. 25, 18 N.W. 918; Dent v. Bennett, 4 Mylne & Cr. 269; 1 Story, Eq. Jur. 307, 308; Rockafellow v. Newcomb, 57 Ill. 186; Wright v. Vanderplank, supra; Baker v. Bradley, 7 De Gex, M. & G. 597; Bergen v. Udall, 31 Barb. 9; Taylor v. Taylor, 8 How. 183; 2 Pomeroy, Eq. Jur. § 961; Hylton v. Hylton, 2 Ves. Sr. 547; Hatch v. Hatch, 9 Ves. 292, and note; Fish v. Miller, Hoff. Ch. 267; 2 Pomeroy, Eq. Jur. § 962; Gibson v. Jeyes, 6 Ves. 266; Hoghton v. Hoghton, 15 Beav. 278-299; Archer v. Hudson, 7 Beav. 551; Kerr, Fr. & M. 178, 179; Williams v. Powell, 1 Ired. Eq. 460; Chambers v. Crabbe, 34 Beav. 457; Jarvin v. Williams, 44 Mo. 465; Todd v. Grove, 33 Md. 188; Berdoe v. Dawson, 34 Beav. 603; Hugenin v. Basely, 2 Lead. Cas. Eq. (556), and notes; 2 Pomeroy, Eq. Jur. §§ 961, 962; Pierse v. Waring, 1 P. Wms. 121, note; 1 Story, Eq. Jur. § 317; 2 Pomeroy, Eq. Jur. § 961; Cooke v. Lamotte, 15 Beav. 234.

The absence of a power to revoke a voluntary settlement of trust is viewed by courts of equity as a circumstance of suspicion and very slight evidence of mistake,...