58 Ind. 579 | Ind. | 1877
In this case, there is no serious dispute about the evidence. We think it proves the following facts, stated in the order of the time in which they occurred :
On the 11th .day of March, 1873, William H. Comin
Upon tliis state of facts, Helen C. Burkert brings her suit to have the deed corrected, and the conveyance of the real estate made to her, and prays that Comingor'e, and all persons under him, be enjoined from selling the land to pay the debt of Winfield S. Burkert.
At special term, the court found in favor of Helen C. Burkert, ordered the land to be sold, and her claim paid; then, after paying costs, to pay Comingore’s judgment, and the balance, if any, to be paid to Winfield S. Burkert. On appeal to the court in general term, the judgment was so modified .as to make the lien of Comingore’s
No trust, in this case, was created in favor of Helen C. Burkert, in writing, and no trust ,can arise, by implication of law, before the payment of the money out of which the trust arises. This principle is explicitly laid down in the elementary works, and fully sustained by authority. Comingore’s judgment existed before the land in controversy was purchased by "Winfield S'. Burkert, and no money was paid by Helen C. Burkert until after the land was purchased. No trust, therefore, can arise in favor of Helen C. Burkert, which can disturb Comingore’s lien on the land, by virtue of his judgment. Irwin v. Ivers, 7 Ind. 308; Matlock’s Adm’r v. Nave, 28 Ind. 35; Milliken v. Ham, 36 Ind. 166.
The judgment of the court in general term is affirmed, with' costs.