Montgomery v. Craig
| Decision Date | 10 April 1891 |
| Docket Number | 14,917 |
| Citation | 27 N.E. 427,128 Ind. 48 |
| Parties | Montgomery v. Craig et al |
| Court | Indiana Supreme Court |
From the Jackson Circuit Court.
Judgment affirmed.
O. H. Montgomery, for appellant.
B. H. Burrell and H. Shirley, for appellees.
It is alleged in the complaint that the appellant, the plaintiff below, purchased the land in dispute in January, 1881; that by an agreement made with his wife, Lucy Montgomery, he caused the conveyance to be made to her; that the land was taken in trust by Lucy Montgomery; that the purchase-money was all paid by the plaintiff; that Lucy Montgomery died in 1887, and that the appellees are her heirs at law.
As the relation of husband and wife existed at the time the deed was executed, there can be no resulting, or implied, trust. Lochenour v. Lochenour, 61 Ind. 595.
If it were possible for the plaintiff to succeed in any event, it could only be for the reason that his wife agreed to hold the land as his trustee. Whether she had capacity to make a contract binding her to hold the land as her husband's trustee is a question we deem it unnecessary to decide, inasmuch as our judgment is that a parol agreement between husband and wife, in such a case as this, is ineffective. As no resulting trust can arise, the appellant can not possibly succeed, except upon the theory that an express trust was created in his favor by the parol agreement; but, as the law forbids the creation of an express trust by parol in cases of this character, the only theory upon which it can even be plausibly argued that he can succeed is wholly untenable. Moore v. Cottingham, 90 Ind. 239; Mescall v. Tully, 91 Ind. 96; Columbus, etc., R. W. Co. v. Braden, 110 Ind. 558, 11 N.E. 357; Thomas v. Merry, 113 Ind. 83, 15 N.E. 244; Anderson v. Crist, 113 Ind. 65, 15 N.E. 9.
This case is not a member of the class represented by the case of Catalani v. Catalani, 124 Ind. 54, 24 N.E. 375, but belongs to an entirely different class. Here, no trust can possibly arise by implication, for no fraud is shown, and the relation of the parties forbids that a trust be implied.
The case made by the complaint is one wherein the plaintiff assumes to overthrow a perfect deed by a bald parol agreement, and this the law will not permit.
Judgment affirmed.
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Jackson v. Jackson
...That there are cases to the contrary is not denied. See Kinley v. Kinley, 37 Colo. 35, 86 P. 105, 119 Am.St.Rep. 261; Montgomery v. Craig, 128 Ind. 48, 27 N.E. 427; Murray v. Murray, 153 Ind. 14, 53 N.E. Andrew v. Andrew, 114 Iowa 524, 87 N.W. 494; Hoon v. Hoon, 126 Iowa 391, 102 N.W. 105; ......
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Jackson v. Jackson
...That there are cases to the contrary is not denied. See Kinley v. Kinley, 37 Colo. 35, 86 Pac. 105, 119 Am. St. Rep. 261; Montgomery v. Craig, 128 Ind. 48, 27 N. E. 427; Murray v. Murray, 153 Ind. 14, 53 N. E. 946; Andrew v. Andrew, 114 Iowa, 524, 87 N. W. 494; Hoon v. Hoon, 126 Iowa, 391, ......
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Skeen v. Marriott
...does not make it the money of the grantor." Walford v. Farnham, 46 N.W. 295 (Minn.); Moore v. Horsly, 40 N.E. 323 (Ill.); Montgomery v. Craig, 27 N.E. 427 (Ind.); v. Constans, 23 N.W. 530 (Minn.); Murray v. Murray, 53 N.E. 946 (Ind.); Gee v. Thraikill, 25 P. 588 (Cal.); Doran v. Doran, 33 P......
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Orth v. Orth
... ... frequently been decided by this court. Peterson v ... Boswell, supra ; Fouty v ... Fouty, supra ; Montgomery v ... Craig, 128 Ind. 48, 27 N.E. 427; Pearson v ... Pearson, 125 Ind. 341, 25 N.E. 342; Wright ... v. Moody, supra ; Mescall v ... ...