Mescall v. Tully

• Decision Date: 18 October 1883
• Docket Number: 10,991
• Citation: 91 Ind. 96
• Parties: Mescall v. Tully et al
• Court: Indiana Supreme Court

91 Ind. 96

Mescall v. Tully et al

No. 10,991

Supreme Court of Indiana

October 18, 1883

From the Superior Court of Marion County.

Judgment affirmed.

W Patterson, for appellant.

R. O Hawkins and P. Norton, for appellees.

OPINION

Elliott J.

The first paragraph of the complaint alleges that appellant was the owner of certain real estate in fee; that he executed jointly with his then wife, Mary Ann Mescall, a mortgage to Richard E. Stanton; that Mary Ann died, and the appellant afterwards entered into a marriage contract with Julia Tully; that there was then an oral agreement made wherein appellant agreed to convey to Julia the real estate upon the condition that she would assume and pay the mortgage executed to Stanton, and that she would hold the property equally in trust for herself and appellant; that appellant, pursuant to this agreement, conveyed the property to Julia, and on the day following they were married; that Mark Tully is the brother of Julia, and has colluded with her to defraud the appellant, and, pursuant to their fraudulent scheme, falsely represented that the Stanton mortgage was satisfied by Julia; that Mark did pay this mortgage, but wrongfully took an assignment thereof; that afterwards Julia abandoned the appellant, and he obtained a decree of divorce; that Mark Tully filed his complaint praying for a foreclosure of the mortgage; that such proceedings were had as resulted in a decree of foreclosure; that sale was made on the decree, and the property purchased by the appellee Mark Tully. It is also alleged, as an excuse for suffering judgment in the foreclosure suit to go by default, that the appellant was unable to read or write, "and was sick and disordered in his mind." The second paragraph is substantially the same as the first, except that it sets forth the proceedings in the foreclosure suit in full, and the third is in substance the same as the first and second, except that it does not refer to the foreclosure proceedings.

In our opinion one principle determines the validity of all these paragraphs, and that is this: An express trust can not be created by parol. As the appellant conveyed the land to Julia Tully by a deed absolute on its face, he can not destroy the effect of his conveyance by alleging that there was a verbal agreement that she should hold it in trust for both of them. Our cases are full upon this subject, and they are in line with the doctrine of the text-writers. Dunn v. Dunn, 82 Ind. 42; Owens v. Lewis, 46 Ind. 488 (15 Am. R. 295); Pearson v. East, 36 Ind. 27; Irwin v. Ivers, 7 Ind. 308; 1 Perry Trusts, section 79; 1 Greenl. Cr. 356, n.; 1 Hilliard Real Prop. 425.

The case is not one where the doctrine upon which constructive trusts are founded can have force, for here the only trust is the express one alleged to have been created by parol. Where there is an express trust there can be no implied one. There are no facts upon which the law can frame a construction of a resulting trust. It would be a plain violation of the letter and the spirit of the statute to permit a deed absolute in its terms to be turned into the conveyance of a trust by a verbal agreement. The very evil the statute was intended to prevent is the one which would prevail if an express trust could be created against an absolute conveyance by an oral agreement. The whole purpose of the statute would be defeated if a deed absolute in terms were allowed to be transformed into an instrument creating a...