80 Mich. 222 | Mich. | 1890
The complainant was married in April, 1881, to Eugene O. Everts, a brother of defendant. Immediately upon such marriage she and her husband moved upon a farm, of 160 acres, in Shiawassee county, and npide it their home until May, 1886. This farm was received by Eugene O. Everts as part of his distributive share of his father’s estate.
In March, 1883, Eugene went to Oakland county, to visit his brother, and while there executed and delivered to the defendant a warranty deed of this farm. The expressed consideration of the deed was one dollar, but there was no real consideration. The deed, in the body, purported to he given by “'Eugene Everts and Alice Everts, his wife,” but complainant refused to sign it when it was brought to her for her signature. The word “heirs” was stricken out before execution, so that the grant was to Gilbert T. Everts and his assigns. After
“The above-described lands are hereby conveyed to the said Gilbert T. Everts by said- -Eugene Everts and Alice Everts in trust for their benefit, and to be held by said second party [Gilbert T. Everts] for the use and benefit of first parties [Eugene and Alice Everts]; and it is fully understood that said first parties are to have the use and benefit of said land, being the income thereof, during the natural lives of both the said first parties.”
The evidence shows that, until 1886, Eugene worked and managed the farm the same as if this deed had not been made, and Gilbert exercised no control over it. In May of that year, Eugene moved to Burton, a small village near Owosso, renting the place for two years to one Monroe upon shares, — each to furnish one-half and receive one-half. While Gilbert was consulted about this leasing, it is plain enough that he exercised no authority or control in the matter. One-half of the produce, while Monroe was tenant, was paid or delivered to Eugene or complainant.
Eugene died December 18, 1887. The complainant testifies that before his death he requested Gilbert to deed the premises back to him. Gilbert made no reply, but promised to come and see him the next week, and talk about the matter, but did not do so. December 17, 1887, the day before he died, Eugene, by warranty deed, conveyed the premises to complainant.
She filed her bill in the circuit court for the county of Shiawassee, in chancery, in January, 1889, alleging that the deed to Gilbert was executed by her husband while he was “ on a spree,” and intoxicated, and when he did not comprehend what he was doing, and could be easily persuaded; that there was no consideration for the deed, and that Eugene was persuaded by Gilbert to execute it upon the pretense that it was a mere trust-
Gilbert answered, denying that the deed was procured as charged by complainant, or that there was any understanding or agreement that he should ever reeonvey the premises to Eugene.
He avers that Eugene went to Holly, Oakland county, and there, of his own free will and accord, executed this deed without any suggestion or solicitation on the part of the defendant, and that it was so made by him for the purpose of saving unto himself, and unto the said complainant, the use, benefit, and income of the said lands during the natural life of himself and that of the said complainant, and that defendant was to hold the said lands in trust for that purpose, and at the death of the said Eugene O. Everts, and the said complainant, he was to deed the said lands to .Carrie May Everts, a daughter of this defendant; and that at the time of the execution of said deed, and in presence of one Patterson and the witnesses to said deed, he so declared and made a trust, in parol, to the effect that, after the death of himself and the said complainant, defendant was to deed, and convey
He denies that Eugene ever requested him to deed back the premises. He admits that Eugene had the possession and the control of the premises, either by himself or his tenant, until his death; and claims the benefit of a cross-bill, and prays that the deed be declared valid, and the parol trust to Carrie May Everts established, and the deed from Eugene to complainant be decreed void.
The circuit judge decreed that the deed from Eugene to complainant was valid as to the portion of the premises used and occupied as a homestead, and invalid as to the balance; that the deed to Gilbert conveyed the title in fee of the lands not embraced in the homestead to Gilbert, subject to the full payment of the net income of such lands to complainant during her natural life.
The testimony shows that up to within a year or so of his death 'Eugene was an intemperate man, and a spendthrift while in liquor, and that he had squandered some $3,000 in cash received from his father’s estate. There is ground for believing that the deed was made to Gilbert for the express purpose of preventing the possible waste of his land, and loss of his home.
Much evidence was given of declarations made by Eugene to various persons supporting the claim of a parol trust, and that he intended, when he and his wife were dead, that the farm should go to Carrie May Everts. But such parol trust, if it existed, is forbidden by our laws, and cannot be enforced. How. Stat. § 1679; Shafter v. Huntington, 53 Mich. 310 (19 N. W. Rep. 11), and cases cited.
The trust in this deed was an express one. Such a trust might be created, under our statutes, for the following, among other, purposes:
“To receive the rents and profits of lands, and apply them to the use of any person, during the life of such*227 person, or for any shorter term, subject to the rules prescribed in the last preceding chapter [chapter 213.”] How. Stat. § 5573, subd. 3.
It is contended by complainant’s counsel that the ■trust created by this deed to Gilbert does not c'bme within the provision of our statute above quoted; that it is a passive, and not an active, trust; that under it the trustee had nothing to do but to hold the title for the beneficiary.
It must be conceded that the clause in the deed creating the trust does not, in express terms, authorize or •empower the trustee to receive the rents and profits of the land; and it is evident, from the conduct of the parties, that it was not intended that Eugene should give ■up the possession of the premises, or put its management into the control of Gilbert. Gilbert had nothing to do with the premises, except to hold the title, until Monroe moved off, in 1888, when he put his brother William in possession, to hold the place for him, five years after the execution of the deed. The complainant and her husband were to have the “use and benefit” of said lands during their natural lives; and such use and benefit, it seems clear from the deed itself, was to be the ■control and possession and management of the farm. Gilbert did nothing except to hold the title, and the ¡striking of the word “heirs” from the deed has some ■significance in construing the trust. If we considered the deed or trust at all ambiguous, so that we would be justified in examining the surroundings and circumstances of its execution or creation, and the acts of the parties, in order to determine its true intent and meaning, we should, upon such examination, be forced to the «ame conclusion that we reach from the language of the deed or trust as written.
We are satisfied that the trust was a passive one, and
The decree of the court below must be reversed, and a decree entered here in accordance with the prayer of the bill, in favor of complainant, with costs of both courts.