Mescall v. Tully

Decision Date18 October 1883
Docket Number10,991
Citation91 Ind. 96
PartiesMescall v. Tully et al
CourtIndiana Supreme Court

From the Superior Court of Marion County.

Judgment affirmed.

W Patterson, for appellant.

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


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 trust...

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116 cases
  • Miller v. Jackson Tp.
    • United States
    • Indiana Supreme Court
    • July 2, 1912
    ...of the complaint, it must be good upon that theory. Oölitic Stone Co. v. Ridge (1907) 169 Ind. 639, 83 N. E. 246, and cases cited; Mescall v. Tully, 91 Ind. 96. The language of the act itself is plain, and needs no construction. It is, whether the suit is brought by the advisory board or by......
  • Huff Energy Fund, L.P. v. Longview Energy Co.
    • United States
    • Texas Court of Appeals
    • November 25, 2015
    ...succeed at all.' " See 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1219 (3d ed.2002)(quoting Mescall v. Tully, 91 Ind. 96, 99 (1883)). "In many ways the 'theory of the pleadings' doctrine seems to represent little more than a reversion to the pleading philosophy......
  • Miller v. Jackson Township of Boone County
    • United States
    • Indiana Supreme Court
    • July 2, 1912
    ...the complaint, it must be good on that theory. Oolitic Stone Co. v. Ridge (1908), 169 Ind. 639, 83 N.E. 246, and cases cited; Mescall v. Tully (1883), 91 Ind. 96. language of the act itself is plain, and needs no construction. It is, whether the suit is brought by the advisory board or by a......
  • Garfield v. Allen
    • United States
    • Court of Chancery of Delaware
    • May 24, 2022
    ...a complaint "proceed upon some definite theory, and on that theory the plaintiff must succeed, or not succeed at all." Mescall v. Tully , 91 Ind. 96, 99 (1883). Once again, the plaintiff had to pick a legal theory at the outset of the case and stick with it. See generally Fleming James, Jr.......
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