Appeal
from circuit court, Mackinac county, in chancery; Oscar
Adams, Judge.
Bill by
Cecilia Thompson and others against Felicia Marley and
others. From a judgment sustaining a demurrer to the bill
plaintiffs appeal. Affirmed.
LONG
J.
This
cause was heard below on bill and general demurrer, and the
demurrer there sustained, and bill dismissed. The bill
alleges, substantially, that all the parties to the cause are
the children and heirs at law of Michael Marley, deceased
who died June 22, 1893. It also alleges that on September 15
1891, Michael Marley conveyed the premises in controversy
here to his daughter Felicia Marley, by warranty deed
without any consideration, and with the understanding that
said property should be held in trust by her, to be
distributed after his death to her and the other children and
heirs at law of said Michael Marley, in proportion to the
just shares as provided by law; and that said Felicia
acquiesced in said understanding with her father, and, to
more fully carry out the same, the said deed was not placed
on record, so that sales could be made of portions of the
land in the name of Michael in his lifetime; and that such
sales were made, and Felicia took the acknowledgment of such
conveyances, and witnessed the same, during the lifetime of
her father. It is claimed that this was procured by fraud and
undue influence. It is further alleged that on December 13,
1892, Felicia procured another deed of warranty from her
father, and caused the same to be recorded, and now claims
the entire fee to the premises, under said last-mentioned
deed, and wholly denies that said
first-mentioned deed was ever made, executed, and delivered
to her. The bill does does not set up any fraud in procuring
this last deed, or claim that there was any trust connected
with the giving of it. The bill prays that this second deed
be set aside, and the trust created by the first deed be
executed. Upon the hearing in the court below, the learned
circuit judge filed a written opinion, from which we quote
with approval as follows:
"It
will be observed that the bill does not allege, in terms,
whether the trust claimed with reference to the first deed
was by parol, or declared by some instrument in writing.
The court, however, on the argument of the demurrer,
noticing that fact, i. e. that it was not alleged whether
the trust was by parol or in writing, inquired of the
complainants' solicitor whether there was any written
declaration of the trust, and was informed by him that
there was none; and from the framework of the bill, as well
as by the statement made by complainants' solicitor,
the court is satisfied that there was no written
declaration of the trust claimed with reference to deed of
September 15, 1891, and, if there were a trust by the
understanding of the parties, that it was a parol trust,
and not one declared in writing. The question arises
whether, considering it as a parol trust, and not in
writing, it could be established, decreed, and enforced by
this court. The statute provides that all express trusts
shall be in writing, and in section 5573, which defines the
purposes for which an express trust may be created,
provides in the fifth paragraph that, where the trust is
for the beneficial interest of any person or persons, such
trust shall be fully expressed and clearly defined upon the
face of the instrument granting it. The decisions in this
state and elsewhere are numerous to the effect that an
express trust cannot be raised by parol. Wright v.
King, Har. (Mich.) 12, 17; Bernard v. Bougard,
Id. 143; Brown v. Bronson, 35 Mich. 418.
It does not seem necessary further to pursue the inquiry as
to whether a parol trust, such as set forth and claimed in
the bill of complaint (if it is to be treated as a parol
trust), could be declared and enforced by a decree of this court; but,
looking at it in that way, it must be declared void. In
Randall v. Constans (Minn.) decided in 23 N.W. 530, 531, it
was held that, where it does not appear by any averment in
the bill of complaint whether the agreement or declaration
of trust was in writing or by parol, it would be presumed
by the court that the agreement referred to was in writing,
and falls within the requirements of the statute of frauds;
and the court refers, as authorities upon that proposition,
to the cases of Wentworth v. Wentworth, 2 Minn.
283 (Gil. 238); Cozine v. Graham, 2 Paige, 178;
Reed, St. Frauds, � 505; Hill, Trusts, � 93. In this case
the court places its findings that it may be presumed to be
in writing in such a case upon the fact that there were no
admissions on the subject on the argument; but in the case
at bar it has been distinctly admitted by complainants'
counsel, on the argument, that there was no written
declaration of the trust. The principle decided in Randall
v. Constans could not be made to apply, and the trust, if
there was any such an understanding as alleged in the bill
of complaint, must be held to be by parol; therefore void
under the statute of frauds.
"The
next question that arises is whether, if the deed of
September 15, 1891, was procured, as alleged in the bill,
by undue influence, by a scheme on the part of defendant
Marley and those who assisted her, and with the
understanding that it was for the use and benefit of all
the other heirs of Michael
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