Gregory v. Bowlsby

• Decision Date: 23 January 1902
• Citation: 88 N.W. 822,115 Iowa 327
• Parties: GREGORY ET AL. v. BOWLSBY ET AL.
• Court: Iowa Supreme Court

115 Iowa 327

88 N.W. 822

GREGORY ET AL.

v.BOWLSBY ET AL.

Supreme Court of Iowa.

Jan. 23, 1902.

Appeal from district court, Madison county; James D. Gamble, Judge.

Suit in equity for the cancellation of a deed made by plaintiffs to defendant, and to declare and enforce a trust in certain real estate. The trial court sustained a demurrer to the petition as amended, and plaintiffs appeal. Reversed.Steele & Robbins, for appellants.

Ruby & Hayes, for appellees.

DEEMER, J.

It appears from the amended and substituted petition, which, under the record, must be treated as presenting the facts, that plaintiffs are the children and heirs at law of defendant Benjamin Bowlsby and of Catherine S. Bowlsby, now deceased, and that the defendant M. J. Bowlsby is the second wife of her codefendant; that Catherine S. Bowlsby died intestate, seised of the real estate in dispute; that at the request of defendant Benjamin Bowlsby certain of the plaintiffs met the father at the home of Frank Davison, a son-in-law, and that the father then and there requested them to deed him their interest in the real estate left by his deceased wife, in order that he might use and farm the land to better advantage, and that he then and there verbally agreed that he would hold the land, would not sell or dispose of the same, and that the net proceeds and accumulations thereof should and would at his death descend to the children of Catherine Bowlsby, as provided by law; that, believing in said promises, and that such an arrangement was valid, they executed a deed of bargain and sale to their father of their interest in the real estate theretofore owned by their mother, which deed recited a consideration of $1, the receipt whereof was acknowledged by the grantors; that by reason of the relations existing between them and their father these plaintiffs accepted his statements and promises without taking legal advice, and relied on him to advise them as to their rights and protect them in the premises; that neither defendant nor his attorney, who was present with him, advised them that the arrangement could not be enforced. It further appears from the allegations of this petition that the conveyance was procured by mistake on the part of these plaintiffs, induced by the representations made to them by said defendant; that said defendant paid nothing for the conveyance, and that the sole consideration therefor was his agreement as aforesaid. It is further alleged that said defendant did not intend to carry out the arrangement or agreement on his part, but made the representations and agreement aforesaid for the sole purpose of cheating and defrauding plaintiffs out of their interest in the land of their deceased mother; that after his marriage to his codefendant he conveyed to her an undivided one-third interest in the property received from plaintiffs, but that this conveyance was without consideration, and was made with intent to cheat and defraud these plaintiffs; that his codefendant, when she took the conveyance, knew of the terms and conditions under which her husband received his deed from these plaintiffs. The prayer is that these deeds be canceled, that plaintiffs be adjudged to be the owners of an interest in the property, that their title be quieted, and that an accounting be had of the rents and profits of the real estate. The demurrer was the general equitable one, and as further grounds therefor it is claimed that the alleged oral agreement is within the statute of frauds.

It will be observed from this statement that the deed from plaintiffs to defendant was absolute on its face, and recited a consideration, the receipt whereof was acknowledged by the grantors; and that the agreement on which plaintiffs rely was in parol. The conveyance was directly from these plaintiffs to the defendant Benjamin Bowlsby, their father; hence the doctrine of resulting trust does not apply. That plaintiffs, in the first instance, are seeking to establish an express trust is too clear for argument; and it is equally clear that such a trust cannot rest in parol. Code, §§ 2918, 4625; Ratliff v. Ellis, 2 Iowa, 59, 63 Am. Dec. 471; McGinness v. Barton, 71 Iowa, 644, 33 N. W. 152;Hain v. Robinson, 72 Iowa, 735, 32 N. W. 417;Dunn v. Zwilling, 94 Iowa, 233, 62 N. W. 746;Maroney v. Maroney, 97 Iowa, 711, 66 N. W. 911;Hemstreet v. Wheeler, 100 Iowa, 290, 69 N. W. 521;Acker v. Priest, 92 Iowa, 610, 61 N. W. 235. We need not quote from these cases in support of the rule announced. They fully cover the ground, and need no amplification. That there was no resulting trust clearly appears from the opinion in Acker v. Priest, supra. See, also, McClain v. McClain, 57 Iowa, 167, 10 N. W. 333, which is directly in point. As the deed was absolute on its face, and recited the payment of a valuable consideration, plaintiffs will not be permitted to establish a trust by showing that there was in fact no consideration but the parol agreement to hold the title in trust. Acker v. Priest, supra, and cases cited at page 617, 92 Iowa, and page 237, 61 N. W.

As an express trust cannot be shown by parol, and as there was no resulting trust, we have one question left, and that is, was there such a fraud perpetrated by defendant Benjamin...