57 Neb. 381 | Neb. | 1899
In 1894 Nelson was the owner of certain land in Sheridan county, incumbered by a small mortgage, on which there was interest delinquent. He conveyed it to Cam
Counsel for defendant discuss the question with needless asperity. The case undoubtedly falls near the line of demarcation between a trust and a merely personal debt, and its decision is not free from difficulty. Without multiplying citations it may be said that the cases throwing light on the subject may be roughly classed as follows: Cases where the attempt is to enforce such an agreement against the land itself. ’ There it is the uniform holding that if a trust may be enforced at all it must be under circumstances raising a resulting or constructive trust; that,the verbal agreement contravenes the statute of frauds. Next there are cases where two men join in the purchase of land, taking title in one, who is to resell and divide profits. Such contracts are usually enforced, although not in writing, but it will be seen there is in such cases a resulting trust from contributing to the purchase-money. Next there are cases where the establishing of the debt does not involve the establishing of any interest in the land itself, as where the action con
As an induction from all the cases it may be said that where it is practicable to enforce the oral promise without establishing any interest in the land itself, the statute does not apply; but where the right to recover depends upon the establishment of an interest in the land, the attempt is to raise an oral trust and must fail. So here, if the petition alleged and the proof established that the conveyance to Cameron was absolute, and that he merely promised, as part of the consideration, that in case of a sale he would pay Nelson a portion of the proceeds, it could not be said that there was any attempt to create a trust in the land, although possibly under our statute there might then be a trust “relating to” land. -But the petition charges, and the proof all tends to show, that the agreement relied on was that only a beneficial interest in one-half should pass to Cameron; that he should be trustee for Nelson as to the other half; and that the agreement to pay a portion of the proceeds of sale, while actually expressed, was only such as followed
Reversed and remanded.