Parrish v. Parrish

• Decision Date: 14 September 1898
• Citation: 33 Or. 486,54 P. 352
• Parties: PARRISH et al. v. PARRISH.
• Court: Oregon Supreme Court

54 P. 352

33 Or. 486

PARRISH et al. v. PARRISH.

Supreme Court of Oregon

September 14, 1898

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Suit by S.B. Parrish and others against Mattie A. Parrish. Decree for plaintiffs. Defendant appeals. Affirmed.

Geo. H Williams, John A. Carson, and Geo. G. Bingham, for appellant.

S.T Richardson and P.H. D'Arcy, for respondents.

WOLVERTON, C.J.

This suit was instituted by the heirs and personal representatives of the late Josiah L. Parrish against his widow for an accounting, and to have her declared a trustee of certain real and personal property which it is alleged she acquired from him either directly or indirectly for their use and benefit. Josiah L. Parrish and the defendant were married in August, 1888, and were aged, respectively, 83 and 38 years. On February 1, 1889, he signed a will which purported to devise and bequeath to the defendant all his property, both real and personal, except $170, which was otherwise disposed of. On the same day he executed two deeds which purported to convey to her all his real property. On July 16, 1889, he and the defendant, for the consideration of $400 per acre contracted in writing to sell and convey to Thomas H. Barnes William Howard Phelps, William T. Seever, and Hugh V. Matthews about 72 acres of said real property. One thousand dollars was paid down, $4,000 additional was to be paid upon the execution of the deed, and the remainder to be secured by mortgage on the premises. The conveyance was made September 27, 1889, to Phelps and Matthews, and the $4,000 cash payment was thereupon made in pursuance of the agreement, and notes and mortgages were executed to the defendant covering the balance of $24,192. On September 28, 1889, all these lands were conveyed to the Salem Land Company. This company subsequently made large payments upon the notes to the defendant, but, being unable to meet them in full, conveyed to her a very considerable portion of said premises, which now stands in her name. On March 20, 1890, the defendant purchased from Matthews, for the consideration of $12,782, a tract of land known as the "Garden Road Property," consisting of 32.66 acres, and took the title in her own name. This, it is alleged, she purchased with the funds of her husband, and she acquired other small tracts under like conditions. On April 10, 1890, Josiah L. Parrish and defendant made, executed, and delivered to F.R. Smith three deeds,--one for the dwelling house in which they were then living, and the lots upon which it was situated, which property is not in dispute, and the other two purported to convey all the real property of which he was possessed at the time of the marriage that had not been subsequently conveyed to third parties; and upon the same day, and as part of the same transaction, F.R. Smith and wife transferred by their deeds of conveyance the same property to the defendant. Several other parcels of land which belonged to Josiah L. Parrish at the date of the marriage were sold and conveyed prior to the execution of said deeds to Smith, and large sums of money realized therefrom. One parcel may be mentioned as that conveyed to Christian Frickey February 4, 1890, for $10,200. It is now sought to have the defendant declared a trustee, for the use and benefit of the heirs and personal representatives of Josiah L. Parrish, of all the lands that she acquired through the several conveyances above referred to, and some others, of small moment, not mentioned, and also of the funds which it is alleged she received for the lands disposed of; and for an ascertainment of the amount for which she is liable an accounting is prayed. The complaint states the age of the said Josiah L. Parrish, his consequent infirmities, and his inability, by reason of his alleged enfeebled condition, both physically and mentally, to efficiently and profitably manage his large property interests; that, in pursuance of a mercenary and wicked design to acquire the property of the deceased wrongfully and without consideration, the defendant, on February 1, 1889, and while the said Josiah L. Parrish was afflicted with a severe attack of apoplexy, and unable to comprehend or intelligently understand the nature of the business in hand, and by reason thereof incapacitated for the transaction of the same, the defendant dictated the will and deeds of that date, and procured their execution by him to her; that thereafter the said Josiah L. Parrish partially recovered from said attack, and the defendant, well knowing that he was incapacitated from making said will and deeds, and deeming said documents worthless for that reason, set about to cheat, overreach, and defraud him of his property, and to cause other deeds to be made to her at a time when he could execute the same and understand their purport; and in furtherance of the said wicked design she represented and pretended to him that because of his infirmity he could not efficiently conduct his business and manage his said property, and that, if he would place the title to all of said property in her name, she would safely keep, manage, and protect the same for his use and benefit, and to his best interest, and that she would hold the said property and its proceeds and accumulations in trust for him; that said Parrish was ignorant of the pretended will and deeds signed February 1, 1889, and was ignorant of defendant's intention to cheat and defraud him, and of her scheme and aim to wrongfully acquire the title to his property in order that she could claim it as hers, and thereby appropriate the same to herself; and relying upon her honor as his wife, and upon her business capacity, and fully believing that his property and business affairs could be more fully and efficiently subserved and managed by defendant than by himself, and relying upon her promise to manage said property and business, and safely keep and retain the same in trust for him and for his use, he yielded to her persuasions and importunities, and did on or about September 1, 1889, agree that said property should thereafter be transferred to defendant for said reasons and purposes, and not otherwise. Then follow specific averments concerning particular transactions, tracing the manner of transfer and final acquirement by her of the legal title to all the property in controversy, and finally that the defendant has never accounted for any of said property, but has appropriated it to her own use, and now fraudulently and illegally claims to own the same. These allegations constitute the gist of plaintiffs' cause of suit.

The defendant, who is appellant here, contends that the complaint is framed upon the theory of an express trust, and, as it is admitted that there was no note or memorandum in writing subscribed by her expressing or declaring the alleged trust concerning such real property, that it is not otherwise provable. It is statutory that no trust or power concerning real property can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating transferring, or declaring the same, or by his lawful agent under written authority, and executed with such formalities as are required by law. Hill's Ann.Laws Or. § 781. But trusts arising by operation of law are not within the purview of this statute. See, also, Id. § 782. Among such are constructive trusts arising ex maleficio, which plaintiffs contend is the nature of the one here involved. The two contentions are opposites, and we are to determine which is sustainable under the complaint, and, if the latter, whether the evidence establishes it. Mr. Pomeroy has stated the doctrine touching trusts arising ex maleficio as follows: "In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust." 2 Pom.Eq.Jur. § 1053. Mr. Justice Paxson, in Christy v. Sill, 95 Pa.St. 380, says: "It may be said, as a general proposition, that, whenever a person has obtained the property of another by fraud, he is a trustee ex maleficio for the person so defrauded. The reason of it is this: Having perpetrated a fraud, and by means thereof obtained the property of another, equity will not permit him to enjoy the fruits of his fraud, but will hold him to be a trustee for the rightful owner. He is not trustee for the title, for that he never acquired, but of the thing which he has in manual possession. These and similar cases are not technical trusts, but constructive trusts, or trusts ex maleficio." Mr. Bispham, in his work on Principles of Equity (4th Ed., § 91), states the principle in much the same way. "Equity," he says, "as we shall see, makes use of the machinery of a trust for the purpose of affording redress in cases of fraud; as, when a party has acquired the legal title to property by unfair means, he will be deemed to hold it in trust for the injured party, who may call for a conveyance thereof. The...