Board of Trustees v. Odom

56 So. 314 | Miss. | 1911

Whiteield, C..

We have most carefully examined the various briefs filed by the learned counsel for appellant, and the authorities therein cited, and we are unable to see any solid ground on which to rest the contentions of the appellant. The two cases chiefly relied on by appellant as being directly in point are Schumacker v. Draeger, 137 Wis. 618, 119 N. W. 305, and Johnston v. Jickling, 141 Iowa, 444, 119 N. W. 746. But both these cases were. cases in which the alleged creator of the trust made to the grantees simply an absolute conveyance, not one syllable being said about a trust in the conveyance. The trust in both cases was a parol trust, to be established by parol evidence dehors the conveyance, and all that the court held in those cases was that in such case, if the grantees wrote out a declaration admitting that they had no beneficial interest, but stood charged with the administration of the trust as proven by parol, and put that deed properly to record, or if they filed a bill admitting the trust, in either case there would be a declaration of trust, and the only declaration of trust in the case in writing duly executed and duly lodged for record, and that this would satisfy the statute. But what application have cases like those to a case like ours, where the only declaration of trust is one made, not by the grantees, but by the grantor, the creator of the trust, and that declaration or creation of trust so manifested and made by the grantor is made and manifested in one way only, to wit, in the deed of conveyance?

In the creation of a trust, as the authorities plainly show, English and American, the creator must make it, and can only make it 'contemporaneously with the creation of the trust, and that is our case. The grantor in this conveyance has fully, and explicitly, and in detail,, made manifest the trust by the language she has used in the conveyance. She attempted to create, or make, or manifest a trust. The grantees here did not create it, or make it, or manifest it. She created this trust in writing, to wit, by the conveyance, and she conld only create a valid trust by dealing with the conveyance which declared and manifested the trust in strict conformity with the provisions of section 4780, Code of 1906 (section 4230, Code of 1892), which is as follows: “Hereafter all declarations or creations of trusts or confidence' of or in any land shall be made and manifested by writing, signed by the party who declares or creates such trust, or by his last will, in writing, or else they shall be utterly void; and every writing declaring or creating a trust shall be acknowledged or proved as other writings, and shall be lodged with the clerk of the chancery court of the proper county to be recorded and shall only take effect from the time it is so lodged for record; but where any trust shall arise or result, by implication of law, out of a conveyance of land, such trust or confidence shall be of the like force the same would have been if this statute had not been passed.” This section expressly declares that “every writing declaring or creating a trust shall be acknowledged or proved, as other writings, and shall be lodged with the clerk of the chancery court of the proper county to be recorded, and shall only take’ effect from the time it is so lodged for record.” In other words, the statute expressly declares that., unless the instrument which declares the trust is properly lodged for record, it shall have no effect. This instrument, it is confessed, contained no acknowledgment of delivery, and hence was not entitled to record, from which it inevitably follows that the. attempted trust never had any effect.

Counsel for appellant confuse themselves in not apprehending clearly what is perfectly plain — that the deed of conveyance here is not simply a deed of conveyance, but that it expressly, explicitly and in the fullest detail declares and manifests the trust. This is too plain for disputation. Again, we are unable to .see any force in the suggestion of counsel that this is not a suit to enforce a trust. The direct and necessary effect of the suit, if successful, would be to enforce a trust manifested and made in writing, but which writing has not been dealt with in the only way which could make the trust effective. Affirmed.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the decree of the court below is affirmed.