169 F. 729 | U.S. Circuit Court for the District of Northern West Virginia | 1909
(after stating the facts as above). The decision of this demurrer, it will be seen, must depend solely upon the construction of the deed from Ashcraft and wife to Cole. On the one hand, it is insisted that this deed on its face shows simply a conveyance to Cole the father of the legal title to the land to be held by him in trust for his infant children, the grandchildren of the grantors. On the other hand, it is insisted that it was an absolute conveyance in fee simple to Cole with no trust of any kind created thereby. In determining the true construction to be arrived at, it will be borne in mind that no restrictions upon the right to convey how and to whom they pleased existed as against the grantors; that this deed is a conveyance, > and not a contract to convey or a covenant to stand seised. It is executed, not executory, binds the estate, and not the person, and conveys both legal and equitable estate to the grantee. It has been held that: When one pays for land, and the title is made to a stranger,, the presumption is that he who paid intended to own; but if the person invested with title is the wife, son, or near relative, or one to whom the purchaser has placed himself in loco parentis, there is no resulting trust. Also that a conveyance to a son-in-law by deed absolute, as an advancement to his wife, does not create a trust in her favor. In such case the father has right to dispose of his property as he will. In making an advancement to his daughter he may well determine that the property may be best vested in her husband with absolute title and the right of disposition trusting to him to see to its application to their joint enjoyment. In a case like this it was not only reasonable but natural for these grandparents to assume that the father could and would best conserve the interest of these infants by being vested absolutely with the property. During their minority they would be subject to his control, and he would be chargeable with the cost of their maintenance and protection.
That motives of this character actuated the execution of this absolute deed is clear from its terms, for it would have been just as easy by specific terms to have constituted a trust in favor of these infants if any such had been intended. The legal principles governing are well settled by very many authorities, among which may be cited: Noe v. Roll, 134 Ind. 115, 33 N. E. 905; Lewis v. Stanley, 148 Ind. 351, 45 N. E. 693, 47 N. E. 677; Heath v. Carter, 20 Ind. App. 83, 50 N. E. 318; Thompson v. Thompson, 18 Ohio St. 73; Acker v. Priest, 92 Iowa, 618, 61 N. W. 235; Higbee v. Higbee, 123 Mo. 287, 27 S. W. 619; Roberts v. Coleman, 37 W. Va. 143, at page 156, 16 S.E. 482; Kyle v. Conrad, 25 W. Va. 760, at page 776; Hamilton v. Steele, 22 W. Va. 348; Harris v. Elliott, 45 W. Va. 245, 32 S. E. 176; Rogers v. Rogers, 52 S. C. 388, 29 S. E. 812; Mosely v. Mosely, 87 N. C. 69.
But it has been repeatedly held that a deed absolute upon its face may be shown by evidence to have been a trust. As to whether this can be done in regard to a deed of advancement of this character the authorities differ. In South Carolina, in Rogers v. Rogers, supra, it is held:
“Where a father-in-law conveyed land to a son-in-law as an advancement to his daughter, parol evidence is inadmissible to prove an express trust in favor of the daughter.”
In case a deed absolute upon its face and not disclosing a trust should, after conveyance by the grantee to an innocent purchaser of the trust subject, be shown to have in fact created such trust, the cestui que trust, by universally conceded principles, would be allowed to pursue the trust fund arising in the hands of its trustee; but he would not be permitted to disturb the conveyance to and title of the innocent purchaser in and to the trust subject itself, as sought to be done in this case. No effort is here made to pursue súch fund in the hands of the grantee Cole for the simple reason that he is charged to be dead and his property to have vested in the infant plaintiffs as his sole heirs at law. The bill charges no fraud upon the defendant purchasers of the coal underlying the land or any knowledge of the existence of any trust in favor of the infant plaintiffs other than that disclosed by the deed itself. This, as I have above said, in my judgment, establishes no such trust, but, on the contrary, strongly refutes the idea that any such was originally contemplated or created.
The demurrer must be sustained.