Thornburg v. Buck

• Decision Date: 14 June 1895
• Docket Number: 1,699
• Citation: Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85 (Ind. App. 1895)
• Parties: THORNBURG, ADMR., v. BUCK
• Court: Indiana Appellate Court

41 N.E. 85

13 Ind.App. 446

THORNBURG, ADMR., v. BUCK

No. 1,699

Court of Appeals of Indiana

June 14, 1895

Petition for rehearing overruled November 1, 1895.

From the Marshall Circuit Court.

Judgment affirmed.

J. D McLaren and E. C. Martindale, for appellant.

J. W Parks, for appellee.

LOTZ, J. GAVIN, J., dissents. DAVIS, J., did not participate in the consideration of this case.

OPINION

LOTZ, J.

The appellee, Calesta A. Buck, filed a claim against the estate of Harvey Thornburg, deceased. The claim was disallowed by the administrator and transferred to the issue docket for trial. Appellant's demurrer, for want of facts, was overruled to the claim or complaint, and he then answered the six-year statute of limitations. The cause was tried by the court, which, at the request of appellant, made a special finding of the facts and stated conclusions of law thereon. The appellant excepted to the conclusions of law. Appellant's motion for a venire de novo and motion for a new trial were also overruled. Exceptions were taken to all these adverse rulings, and they are each assigned as error in this court.

In her statement of claim or complaint the appellee avers that on the 24th day of August, 1877, she was the wife of one Edgar Wilson, but was living separate and apart from him; that at said time she had money, notes and other property in her own right, and that she purchased the west half of lot number eight in Blain's addition to the city of Plymouth, Indiana, and paid therefor in cash the sum of $ 500.00; that on account of the fact that she and her husband were living separate and apart she believed it to be necessary to convey the said real estate to some other person than herself; that the wife of the decedent and the claimant were sisters, and that on account of such relationship, and upon his consenting to hold the title to said property for her, the real estate was conveyed to said decedent to be held by him in trust for her; that after the purchase of said property she occupied it for a number of years, when she changed her residence to the city of Fort Wayne; that it was afterwards agreed that the deceased should sell the property for such sum as it was worth, and to keep and retain the money derived therefrom for the use and benefit of the claimant; that said Harvey Thornburg did on the 6th day of October, 1879, sell and convey said real estate to one Albert Bohmer at and for the price of $ 1,000.00; that said decedent had the use and benefit of said $ 1,000.00 trust fund since the 6th day of October, 1879; that the principal and interest on said sum from the date of said last conveyance is justly due and owing. It also appears from the averments that the claimant is now the wife of one Buck.

It is urged against the sufficiency of the complaint that the claim at the most is but a naked legal obligation, a debt and not a trust; that it is stale and barred by the statute of limitations. Is the obligation set forth in the complaint the ordinary legal one, or is it one arising from equitable conditions and considerations? A debt in the technical sense is money due or owing on account of a contract, express or implied. While a trust, strictly speaking, is an obligation arising out of a confidence reposed in a person to whom the legal title to property is conveyed, upon the condition that he will faithfully apply it according to the direction and wishes of the grantor. Under the circumstances averred, the obligation arising is one growing out of a trust, and not a mere legal one. The settled rule is, that if the statute of limitations contain exceptions, and it is relied on as a defense, it must be specially pleaded, unless the complaint clearly shows upon its face that the plaintiff is barred, notwithstanding such exception. Potter v. Smith, 36 Ind. 231.

There are exceptions to the six year statute of limitations. For aught that appears, the plaintiff may have been under legal disability, or a nonresident of the State, and there is nothing in the complaint to show that she is or is not within any of the exceptions. The same question arises on the exception to the conclusions of law, but we will dispose of it in the order in which the appellant has presented it. The rule is well settled that the statute of limitations begins to run against a trust only from the time when the trust is openly disavowed by the trustee who insists upon adverse rights and interests, which insistence is fully and unequivocably brought to the knowledge of the cestui que trust. The appellant contends that the facts pleaded do not establish a trust relationship between the plaintiff and decedent, or if they do, the trust is one concerning real estate resting in parol and incapable of enforcement under the statute. Section 3391, 6631, R. S. 1894 (section 2969, 4906, R. S. 1881). Conceding that an express trust in real estate resting in parol while it is executory may be voidable, still it may be enforced as a resulting trust under certain conditions; as where one party pays the consideration and by agreement and without fraudulent intent the conveyance is made to another to hold the land in trust for the party paying the purchase money. Section 3398, R. S. 1894 (section 2976, R. S. 1881). Here it appears that the purchase money was paid by the plaintiff, and that by agreement the title was taken by the decedent in trust and without any fraudulent intent. But aside from this, it further appears that the real estate was sold and that the decedent agreed to keep and hold the proceeds for her use and benefit. Here was a trust created in the money or personal property and it is well settled that a trust in personalty may be created by parol. Talbott, Admr., v. Barber, 11 Ind.App. 1, 38 N.E. 487; Mohn v. Mohn, 112 Ind. 285, 13 N.E. 859; Thomas, Admr., v. Merry, 113 Ind. 83, 15 N.E. 244; Parks v. Satterthwaite, Admr., 132 Ind. 411, 32 N.E. 82.

It is further insisted that in order to create a trust in the proceeds of the sale, there must be a consideration shown for the agreement to hold the proceeds in trust. This contention is shadowy to say the least. The decedent had appellee's money or property, and this is a sufficient consideration. There is nothing in the complaint from which it appears that the trust was ever disavowed or that the statute of limitations ever ran against it. There was no error in overruling the demurrer.

The next contention is that the court erred in its conclusions of law. There are many unnecessary and evidentiary matters contained in the special findings, but disregarding all such, those still remaining are substantially the same as those averred.

The appellant insists that there is a fatal variance between the averments of the complaint and the facts found in this respect: the complaint avers that the decedent sold the real estate for the sum of $ 1,000.00, while the finding of the court in relation thereto is as follows: "That * * on the 6th day of October, 1879, said Thornburg sold said property in pursuance of said agreement and executed a deed therefor to one Albert Bohmer, receiving a consideration therefor in lands of the value of $ 1,000.00." The allegation is that the decedent received money or funds, while the proof is that he received lands. It is assumed that a trust obligation arising out of money is not supported by a finding that the obligation arose out of lands, that there is here a fatal variance or failure of proof. In the strict legal sense there is a marked difference between a sale and an exchange or barter, but in common parlance the one is frequently used for the other. If the effort were to pursue a particular fund or to enforce a trust as against specific property, the contention would have much force, but the effort is to enforce an obligation, and the manner in which it arises is of secondary consideration. The strict rules of pleading and practice do not apply in claims against decedents' estates. Neither nicety of averment nor nicety of proof is required. Of course the proof must always be sufficient to establish a liability against the estate. The statute requires that only a...