58 Neb. 548 | Neb. | 1899
December 14,1892, the appellant commenced an action in the district court of Douglas county against Turlington W. Harvey to recover the sum of $4,655 alleged to be due it on his contract of guaranty. On the same day it sued out a writ of attachment, which was by its direction levied upon the land in controversy as the property of Harvey. The legal title to the land stood in the name of Turlington W. Harvey, but on the 28th of said month, by quitclaim deed, Harvey and wife conveyed the land to the T. W. Harvey Lumber Company. Two days afterward this deed was recorded. On the trial of the case of the bank against Harvey the court found in favor of the plaintiff therein and rendered a judgment against him for $5,537.50 and costs, and ordered the sheriff to proceed as upon execution to advertise and sell so much of the attached property as should be necessary to satisfy said judgment and costs. This he was about to do when this action was commenced by the appellee, and an injunction issued to restrain the bank from taking further steps in the attachment proceeding.
The T. W. Harvey Lumber Company was incorporated in 1883 under the laws of the state of Illinois with a paid-up capital of one million dollars. T. W. Harvey owned a controlling interest in the corporation and was its president. There were seven stockholders in the concern and its main office was in Chicago. In the fall of 1885 it contemplated establishing a branch of its business at Omaha, and on October 3 of that year a lot was purchased at Gibson, a suburb of Omaha on the line of the plaintiff’s railway. The title to this lot was taken in the
Much stress is placed by defendant on the apparent variance between the testimony of the several witnesses of plaintiff and the books of account of the Omaha office of the lumber company. It is clear that the books introduced disclose only a portion of the transaction. The books do not purport to show what was paid out by the main office in Chicago. The witnesses, in their testimony, stated that certain payments were made by that office, and this testimony being uncontroverted must be taken as true. The same may be said of the contention of defendant regarding the fact that the taxes were assessed in the name of T. W. Harvey and that the receipts for taxes paid were issued in his name. Mr. Miller, a clerk from the treasurer’s office, testified that tax receipts were always issued to the person in whose name the property was assessed, without any reference to the person paying, unless a special request was made that the receipt be issued differently. Mr. Harvey testified that the taxes were paid by the lumber company. Fix>m all the facts and circumstances detailed we think the trial court was justified in finding that a trust resulted in favor of the lumber company. In classifying trusts Lord Hardwicke, in Lloyd v. Spillet, 2 Atk. [Eng.] 148, lays doAvn the rule as to one class of resulting trusts as folloAvs: Where an
The appellant, however, complains because parol testimony was admitted to prove that a trust resulted in favor of the lumber company, and asserts that the transaction, being one concerning real estate, is within the statute of frauds, and. that, therefore, parol testimony was inadmissible to vary the terms of the deed, or to show the circumstances surrounding the transaction. In this contention of counsel we cannot concur. Resulting trusts arise by operation of law, and are expressly excepted from the operation of the statute. (Compiled Statutes 1895, ch. 32, sec. 4.) From their very nature resulting trusts are not within the statute of frauds. (Champlin v. Champlin, 136 Ill. 309; 10 Am. & Eng. Ency. Law [1st ed.] 25.) “The real facts as to the payment of the money by a third person may be proved by parol, even though the deed recites that the consideration was paid by the person named as grantee therein.” (2 Jones, Evidence sec. 425; Blodgett v. Hildreth, 103 Mass. 484; Deck v. Tabler, 41 W. Va. 332; Neil v. Keese, 5 Tex. 23; Smith v. Eckford, 18 S. W. Rep. [Tex.] 210; Depeyster v. Gould, 2 Green Ch. [N. J.] 474; Burden v. Sheridan, 36 Ia. 125; Livermore v.
The decree of the district court is right and must be
Affirmed.