26 P. 226 | Nev. | 1891
The facts sufficiently appear in the opinion. The plaintiff conveyed certain real property described in the complaint to his father-in-law, the appellant. The deed of conveyance *161 states that it was made in consideration of the sum of one thousand two hundred dollars. Plaintiff claimed, and the court and jury found, in substance, that the title to the property was conveyed to the appellant, without consideration, upon his promise to hold it in trust for the benefit of the plaintiff, and, in case of the plaintiff's death, for the benefit of his infant daughter; and that the conveyance was made because of the confidential and influential relation which existed between the parties. A decree was entered in favor of the plaintiff, requiring the defendant's son, who was also a defendant in the case, and who received the title to the property without consideration, to make a deed of conveyance thereof to the plaintiff.
Appellant claims that parol evidence was inadmissible to prove the trust. The claim is based upon the statute of frauds. The statute provides: "No estate or interest in lands * * * nor any trust or power over or concerning lands or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same. * * *" (Sec. 2624, Gen. Stat.)
If the statute is applicable to the case, the trust is void, because it is an express trust, established by parol evidence only. Nor is the trust one arising by act or operation of law, within the meaning of the statute, for the law never implies a trust when there is an express one declared by word or writing. (2 Washb. Real Prop. 470;Dennison v. Goehriny, 7 Pa. St. 175.) But the statute of frauds has no application.
The plaintiff conveyed the property to the defendant because of the confidence reposed in him, without consideration other than he should hold it subject to the trust mentioned. If defendant were permitted to retain it, plaintiff could be defrauded, and the statute, which was intended to prevent frauds, would be the means for the accomplishment of a fraud. To prevent such a result, equity raises a constructive trust in the grantee and in favor of the grantor.
In the case of Cox v. Arnsmann,
Another case similar in principle is that ofWood v. Rabe,
But there is a large class of so-called `constructive trusts,' or trusts ex maleficio, where courts of equity treat the holder of the legal title to land as a trustee, and, through the medium of an assumed trust, male that title subservient to the circumvention of fraud and the attainments of justice. Trusts of this character are not, I assume, within the exception in the statute. * * * (But seeDavies v. Otty, 35 Beav, 208; Seichrist's Appeal, 60 Pa. St. 237.) So, where a trust is sought to be established from the violation of an oral agreement purporting to create a trust, and a court of equity upholds the trust, and enforces specific performance, the trust is not an implied or constructive trust within the statute. (See Bellasis v. Compton, 2 Vern. 294.) The court in granting relief in case of an oral agreement proceeds upon the ground of fraud, actual or constructive, and enforces the agreement notwithstanding the statute, by reason of the special circumstances."
The two principles upon which equity proceeds in this character of case are thus stated: "One is that it will not permit the statute of frauds to be used as an instrument of fraud; and the other that when a person, through the influence of a confidential relation, acquires title to property, or obtain an advantage which he can not conscientiously retain, the court, to prevent the abuse of confidence, will grant relief." (Page 425.)
Some of the decided cases hold that trusts arising out of facts similar to those of the present case arise by implication or construction of law, and are, therefore, within the exception in the statute of frauds; others, that such cases do not fall within the exception; but all agree that either by the exception, or not notwithstanding the statute of frauds, relief may be granted in a proper case. Appellant also claims that if any trust was established it was for the benefit of plaintiff's daughter, and for himself. "The complaint alleges a trust in favor of the daughter; and also a trust for the benefit of plaintiff, and, in the event of his death, then for the benefit of his daughter. The pleading is ambiguous in this respect, but the objection was *164 not taken, and the evidence was sufficient to support the finding of fact upon this point. The judgment and order are affirmed.