Wright v. Young, Civil 1613

• Court: Supreme Court of Arizona
• Writing for the Court: JOHN WILSON ROSS, J.
• Citation: 176 P. 583,20 Ariz. 46
• Parties: E. S. WRIGHT, HARRY F. WRIGHT and MRS. R. O. JACKSON, Formerly EMILY GLADYS WRIGHT, Appellants, v. A. C. YOUNG, Appellee
• Docket Number: Civil 1613
• Decision Date: 18 December 1918

176 P. 583

20 Ariz. 46

E. S. WRIGHT, HARRY F. WRIGHT and MRS. R. O. JACKSON, Formerly EMILY GLADYS WRIGHT, Appellants,
v.
A. C. YOUNG, Appellee

Civil No. 1613

Supreme Court of Arizona

December 18, 1918

APPEAL from a judgment of the Superior Court of the county of Yavapai. Frank O. Smith, Judge. Affirmed.

Messrs. Anderson, Coleman & Nilsson, for Appellants.

Messrs. O'Sullivan & Morgan, for Appellee.

OPINION [176 P. 584]

[20 Ariz. 47] JOHN WILSON ROSS, J.

The salient allegations in appellants' amended complaint on which they base their right to the relief sought are to the following effect: That on the thirty-first day of March, 1908, Mrs. Mary L. Wright, widow of James H. Wright, deceased, and mother of the plaintiffs and of Mary S. Wright, deceased, died intestate, seised in fee simple of certain real estate situate in the city of Prescott, Yavapai county, Arizona. That plaintiffs and Mary S. Wright, deceased, were and now are the sole heirs of Mary L. Wright, deceased. That Mary S. Wright and defendant, A. C. Young, were married on the fourteenth day of November, 1911, and that Mary S. Wright died intestate and without issue, leaving the said defendant, A. C. Young, still her lawful husband and sole heir at law. That the plaintiffs, on the eighteenth day of April, 1908, made, executed and delivered their quitclaim deed to said real estate to the said Mary S. Wright. That, at the time of the making of said quitclaim deed, it was mutually agreed by and between appellants and the said Mary S. Wright that the said Mary S. Wright should accept, take and hold the title to said real estate for the purpose of making a sale thereof, and should occupy and live upon the said premises and use the rents or income therefrom for the purpose of keeping the premises in repair and pay the taxes theron. That as soon as the premises were sold the proceeds from such sale would be divided [20 Ariz. 48] equally among the heirs, viz., E. S. Wright, Harry F. Wright, and Mrs. R. O. Jackson, the appellants, and the said Mary S. Wright. That the said Mary S. Wright agreed and consented to all the conditions so mutually understood, agreed and intended to be performed. That said quitclaim deed was made without consideration, but recites a consideration of one dollar. Mary S. Wright died on the fourth day of April, 1915. That on the twenty-sixth day of February, 1916, E. S. Wright for himself and his coappellants requested of A. C. Young, appellee, to carry out the conditions of said agreement and presented to him a quitclaim deed for his signature, and that the said A. C. Young refused to execute and deliver the same.

The plaintiffs prayed that a trust be declared in their favor for an undivided three-fourths interest in the said real estate, and that the said A. C. Young be adjudged a trustee of the said three-fourths interest.

To the amended complaint, defendant interposed a general and special demurrer questioning the sufficiency of said amended complaint upon the grounds: That the same does not state facts sufficient to constitute a cause of action; that the alleged agreement, not being in writing, is void under the statute of frauds; laches and estoppel; peaceable and adverse possession under the three-year statute of limitation and the five-year statute of limitation; and, by was of answer, denies that appellants own any interest in said real estate; and alleges that appellee is the owner in fee simple of said real estate, obtaining title to the same as the sole heir at law of Mary S. Wright, deceased.

The cause was tried before the court without a jury. Thereafter, on the third day of May, 1917, the trial judge rendered his decision in writing, finding in favor of the defendant. On the same day judgment was entered in favor of the defendant. From the final judgment and order denying plaintiffs' motion for a new trial, plaintiffs appealed to the supreme court.

Attention is called to appellants' first assignment of error, which is that the trial court erred in holding that a grantor cannot impress a trust upon his own deed by parol evidence alone. In the case at bar the trust is an express trust as alleged in the amended complaint and proved by the evidence. There is no material conflict in the evidence. One of the [20 Ariz. 49] main points raised by the pleadings, and which this court ought to determine, is: May the grantor in a deed duly executed and delivered impress or ingraft a parol trust in his own favor against the terms of his own deed when the trust is an express trust, and is not tainted with fraud, mistake of duress [176 P. 585] arising at the time of the execution of the deed?

There is no provision in our statute similar to that found in the seventh section of the English statute of frauds and perjuries, which enacts that all declarations or creations of trusts and confidences of any lands or tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust or by his last will in writing. It necessarily follows that the English statute of frauds does not apply in our state, and the question is an open one as to whether an express trust may be impressed or ingrafted on a deed in favor of the grantor as against the terms of his own deed when the same is not tainted with fraud, mistake or duress arising at the time of the execution of the deed.

The seventh section of the English statute of frauds has been substantially enacted in some of the states of the United States, and it is uniformly held, wherever the statute of frauds in force contains a provision requiring express trust to be created or evidenced by writing, that an oral agreement between the grantor and grantee that the property conveyed shall be held in trust for the grantor cannot be enforced as an express trust.

The alleged deed recites a valuable consideration paid by the said Mary S. Wright to the plaintiffs, and contains the habendum, which is as follows:

"To have and to hold the same together with all and singular the...