32 Ind. App. 104 | Ind. Ct. App. | 1903
The court below sustained the demurrer for want of sufficient facts of the appellee, administrator of the estate of Judith. Glick, deceased,'to each of the two paragraphs of the appellant’s statement of claim against that estate. In the second paragraph it was in substance alleged that the intestate, widow of Emanuel Glick, deceased, and certain others named, his children, by their quitclaim deed, October 18, 1881, conveyed certain described real estate in Huntington county to the appellant, in trust to pay the debts of said Emanuel Glick, deceased, Judith Glick agreeing that as much of her share of the real estate as might be necessary therefor should be used to pay such debts; that the appellant proceeded to sell and did sell all of the real estate, except a portion thereof described, .being twelve and eighty-one one-hundredth acres, which tract was less than a one-third share of the real estate so conveyed to him; that Judith Glick, widow, consented to such sales, and that the proceeds thereof should be applied on the debts of Emanuel Glick, her deceased husband, and the proceeds were so applied, and his debts were paid; that, after the debts had been paid, the appellant, in the spring of 1882, his wife joining, executed a deed for such remaining real estate to Judith Glick, and tendered it to her in full settlement of his said trust; that when he tendered it to her she was in
The first paragraph was like the second, except that the amount of the note to Martha Dinius was mentioned therein, being $75, and in other respects the facts were stated more fully in the second paragraph. By the terms of the deed the grantors conveyed and quitclaimed to the appellant “in trust,” no consideration being stated, and the purpose of the creation of a trust not being more fully expressed.
The appellant, the grantee, “in trust,” in his statement of claim, admits and sets forth the character and object of the trust, which do not appear to have been expressed otherwise than orally, being that the grantee should pay the debts of the deceased husband of one of the grantors and father of the others, using for such purpose so much of the widow’s one-third share of the land as might be necessary, no "other consideration being alleged; it being admitted also that he had accomplished the purpose of the conveyance in trust, and that a certain definitely described portion of the real estate, less than the widow’s
Our statute provides that no trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same or by his attorney thereto lawfully authorized in writing. §3391 Bums 1901. It is not enough for the deed of conveyance by which it is proposed to create a trust that it shall merely indicate an intention of the parties thereto to .create some sort of trust. The trust must be expressed in the instrument, or by a reference therein to some other writing, so that the court which is called upon to enforce it as an express trust may ascertain, without resort to parol evidence, the character of the trust. To this end a beneficiary should be named or indicated. In the deed here shown no purpose of the trust is stated. There is no provision requiring the trustee to hold the property for any designated use or purpose, or for any designated person. It can not be ascertained from the writing that the trustee was to devote the land or its proceeds to any particular purpose, and to hold and recover the remainder thereof not so usecl to the grantors, or any of them. It may be claimed, plausibly, that there is indication in the writing that the grantee was not to hold absolutely for his own benefit alone, for in such case the words “in trust” would be wholly superfluous; yet there can not be said to have been more than the ineffectual expression of a desire to create a trust, inasmuch as the
The case before us is not one brought by the assumed cestui que trust seeking the enforcement of the alleged parol trust under the terms of the deed of conveyance, supplemented by a parol agreement, but the grantee himself has instituted the suit, asserting in his complaint his trusteeship and the character thereof, and naming the beneficiary for whom he was to hold the portion of the land remaining after the accomplishment of his active duty as trustee. lie has admitted by matter of record the facts which, if set forth in the deed, would have made it fully expressive of an enforcible trust. The court is not called upon to accept parol evidence as against the grantee for the purpose of charging him as a trustee. The facts thus for the purposes of the case established are such that it would be a fraud upon the widow who joined in the conveyance to. deny her beneficial ownership., of the real estate in question; and the alleged trustee does not interpose the statute or resist the proof of the trust by parol evidence, but asserts the widow’s equitable ownership of the property and his bare legal title. There could he no occasion here for the enforcement of the statute to prevent fraud, the, purpose for which it was enacted. The appellant could have no reason to complain if in the suit brought by him against the personal representative of the deceased widow, in which her heirs at law were not parties, the court to which he applied took the view of the transaction presented by Mm.
Assuming, then, that for the purposes of the case the appellant, when he had paid the debts of the deceased husband and father, held the unused portion of the real estate in trust, the equitable title thereto being in the widow,
A contract, which, being within the statute of frauds, has been made in compliance therewith, can not, be orally modified. Carpenter v. Galloway, 73 Ind. 418. While, therefore, the appellant’s effort to have the quitclaim deed treated as a mortgage to secure any indebtedness of the intestate, Judith Glick, to him, growing out of his suretyship for her must fail, it does not necessarily follow that he had no claim for the recovery of money from her estate; and the complaint needs further consideration to ascertain whether or not it shows facts on which to base such a recovery. While a surety upon a promissory note assumes liability thereon to the payee from the time of executing the note, yet, until ho has been compelled to pay the debt, or has sustained some loss by reason of his suretyship, he has no cause of action against his principal merely on the ground that he is bound as surety, and liable as such to pay the debt, even though the principal be insolvent and wholly unable to discharge the debt or any part of it. His right of action against his principal is not founded upon the
It is alleged in the complaint that the appellant was compelled to pay and did pay November 13, 1899, for the intestate, as her surety, a specified amount on a note dated June 1, 1882, and another certain amount on a note dated July 31, 1883. The claim was filed March 5, 1902, the intestate having died, February 4, 1901. We can not look to the notes filed as exhibits, and can know concerning them only what is alleged in the complaint.
It is well established that the statement of a claim against a decedent’s estate, like a complaint originating before a justice of the peace, is to be regarded as sufficient if it apprises the defendant of the nature of the claim and the amount demanded, and contains enough substantial matter to bar another action for the same demand.. Applying this rule to the complaint before us, and having reference to our decisions wherein the rule has been affirmed, we are required to hold that ea.ch paragraph was a sufficient statement of claim. Taggart v. Tevanny, 1 Ind. App. 339; Knight v. Knight, 6 Ind. App. 268; Hopewell v. Kerr, 9 Ind. App. 11; McCulloch v. Smith, 24 Ind. App. 536; Harker v. Glidewell, 23 Ind. 219; Gerber v. Sharp, 12 Ind. 553.
Judgment reversed.