Campbell v. Campbell, 70 Wis. 311

70 Wis. 311 | Wis. | 1887

ORtoüst, J.

This is an action of ejectment, and the plaintiff proved his title in fee to the premises. The defense is in substance and in effect that the consideration of the purchase of the premises was paid by Thomas E. Campbell, a brother of the plaintiff, and the defendant, his wife, or both, and that the conveyances to the plaintiff wrnre made in trust for his use and benefit. There was much evidence upon this issue, and we think the evidence tended strongly to show that the plaintiff .furnished and paid said consideration. But all of this evidence was immaterial, in the view we are compelled to take of this case. If Thomas R. Campbell deeded or caused the premises to be deeded to the plaintiff without consideration, or either he or his wife, tho defendant, or both of them, furnished the consideration for the purchase, and directed the deeds to be made to the plaintiff, it is pure and simple a trust, and nothing else, that the defendant seeks to establish against the absolute conveyances to the plaintiff. The statute of uses and trusts cannot b'e evaded by calling these supposed rights equities.

The defendant sought to prove an express trust in writing in these lands in favor of herself or her husband, and introduced in evidence a power of attorney from the plaintiff to Thomas R. Campbell, executed about the 20th day of August, 1817, authorizing and empowering him to sell and convey said premises, in his name and for his use, in the form of an ordinary power to an agent to sell and convey lands, and, in connection therewith, a letter from said Thomas R. Campbell to the plaintiff, requesting him to execute and acknowledge said power of attorney and return the same to him. In this letter occurs this clause: “The remaining undivided half of the eighty acres I pxireliased of Paul last winter, deeded to you. I am doing- some business in relation to it, and would wish to have a power of attorney for doing so.” This clause is claimed as an express trust declared in Thomas, and showing that the power of attorney was to be made to Thomas in order that he might convey the premises in such way as to reinvest himself with the title or to have it conveyed to the defendant. It will be seen at a glance that this clause has no such meaning. It is not inconsistent with the absolute ownership of the land by the plaintiff. If such was the purpose of this power, why was not a conveyance made directly, either to Thomas or his wife, the defendant, instead of this at least questionable and unnecessary method of causing the title to be so placed? Before his death, Thomas, by virtue of this power of attorney, deeded the premises to one Bottensek, without any consideration, and Bottensek conveyed the same to the defendant. There was no express trust in writing shown, by which these premises were to be reconveyed to Thomas E. Campbell or conveyed to the defendant; and if it had been satisfactorily proved that either Thomas or the defendant, or both of them, paid the consideration of the conveyance to the plaintiff, or that Thomas and his wife, the defendant, conveyed to the plaintiff said premises without consideration, no trust whatever in either Thomas or the defendant to convey or reconvey to them or either of them could result or be implied. Sec. 2077, R. S.; Rasdall's Adm'r v. Rasdall, 9 Wis. 379; Whiting v. Gould, 2 Wis. 552; Rogan v. Walker, 1 Wis. 527; Bird v. Morrison, 12 Wis. 138.

The circuit eourt seems to have taken this view of the case in rendering judgment for the plaintiff. It is found “ that the power of attorney to T. E. Campbell -was solely for the purpose of giving him authority to sell the premises for the benefit of the plaintiff;” “ that the conveyance thereof under said power in the name of the plaintiff to Bottensek, and by Bottensek to the defendant, were without consideration, and with fraudulent intent to defraud the plaintiff and to obtain possession and title to said premises;” and “that, at the time such conveyances were so made, the plaintiff was the bona fide owner of the land.” In the opinion of the learned judge of the circuit court found with the record, it seems that he predicated his decision on the statute of frauds and of trusts, There can be no question of the correctness of the decision.

By the Court.— The judgment of the circuit court is affirmed.