Hays v. Regar

• Decision Date: 26 May 1885
• Citation: 1 N.E. 386,102 Ind. 524
• Parties: Hays and others v. Regar.
• Court: Indiana Supreme Court

102 Ind. 524

1 N.E. 386

Hays and others

v.Regar.¹

Supreme Court of Indiana.

Filed May 26, 1885.

Appeal from Marion superior court.

McMaster & Boice, for appellants.

I. Klingensmith and C. S. Denny, for appellee.

Mitchell, C. J.

On the fifteenth day of August, 1872, William Regar was the owner of a lot in Davidson's Heirs' addition to the city of Indianapolis. On that day, his wife joining, he conveyed it to John Stumph by an absolute deed. This conveyance was made without any consideration, and upon a parol trust that the title should be held for the benefit of Regar, who remained in possession and paid the taxes. On the ninth day of February, 1878, by the direction of Regar, Stumph and wife conveyed the lot to the appellee, Regar's wife. While the title was in Stumph in the manner stated, Hays & Wiles recovered a judgment against him in the Marion superior court. After the lot was conveyed to Mrs. Regar, the city of Indianapolis, by due proceedings, condemned it for street purposes, assessing damages to Mrs. Regar at $412.50. This sum was paid into the city treasury. Hays & Wiles claimed the money, or part of it, from the city treasurer, on account of the alleged lien of their judgment, which was acquired while the legal title was in Stumph. This suit was brought by Mrs. Regar against the city and its treasurer, and Hays & Wiles, for the purpose of establishing her right to the money.

The determination of a single question which is raised on the record in various ways settles all there is in the case. Appellants claim that, because the deed from Regar and wife to Stumph was absolute, and the alleged trust in favor of Regar rested in parol, the lot was bound by the lien of the Hays & Wiles judgment, and that it was, therefore, not competent to aver and prove the parol trust. There is no claim of any fraud in the transaction. It is averred in an answer, to which a demurrer was sustained, that the judgment of Hays & Wiles was rendered upon a note executed by Stumph to them, and that the consideration of the note was goods and merchandise sold by them to him on the faith that he was the owner of the lot. The question is, not whether the parol trust may be enforced, but, the parties having voluntarily executed it, is it competent to aver and prove that it existed, in order to defeat the apparent lien of Hays & Wiles' judgment?

The case cannot be distinguished in principle from Moore v. Cottingham, 90 Ind. 239, in which it was decided, in a well-considered opinion by Best, C. J., that, although the trust rested in parol since it had been executed, proof of the facts will be allowed as against the claim of a judgment creditor. It is insisted that Moore v. Cottingham, supra, effects a virtual abrogation of section 2969, Rev. St. 1881, which inhibits the creation of trusts concerning lands, unless such trusts arise by implication of law, or are created by writing, signed by the party creating the same. We think no such consequences follow from the decision referred to. This statute, as also the statute of frauds, was enacted, not that parties might avoid trusts which were executed, but rather to enable them, in case of an attempt to enforce such trusts while they remained executory, to insist on certain modes of proof in order to establish them. The trust having been executed, we need not determine whether it was one arising by implication of law, or whether it was an express trust. Whether it was one or the other, the parties having voluntarily executed it, the authorities...