133 P. 791 | Or. | 1913
delivered the opinion of the court.
S. M. Beard died intestate on January 8,1910, leaving as residuary legatees, Elizabeth Beard, a sister in law, and the mother of the other residuary legatees, viz., Mary B. Gray and S. Roscoe Beard, plaintiffs, and A. Edgar Beard, defendant; also Carrie E. Cadwell
S. M. Beard, deceased, for several years was president of a bank at Vancouver, Washington, prior to 1906, at which time he sold his interest in the same. He was a thrifty, painstaking business man, and in one of his letters he stated that he lived on less than $25 per month. He was not considered an immoral man, but the evidence indicates that he was unable to discriminate between a worthy and a designing woman. His first wife died, leaving no children. He was married the second time on August 18, 1898, and divorced in January, 1899. In August, 1904, he was married the third time, and divorced in February, 1905. A fourth marriage took place in February, 1909, with a following divorce in May, 1909. It is claimed by plaintiffs that, by reason of His several marriages and divorces, and the fear that some woman might endeavor to obtain a large part of his property, it was his practice to keep much of his property standing on the records in the names of several different persons, who held the same in trust for him.
In December, 1901, S. M. Beard organized the Beard Fruit Company, for the purpose of holding title to his valuable properties in Clarke County, Washington. A. Edgar Beard was a nephew of the decedent. The record shows that his uncle had impficit confidence in him. On the 22d of July, 1897, S. M. Beard was the owner of a one-half interest in lots
Selling. Conservative.
62%xl60 feet, lot Tabor Heights...................$ 2,500 $2,000
41.12 aeres Kelly Butte........................... 16,000 8,000
It is signed by S. M. Beard. The inventories of January 16, 1909, and of January 1, 1910, mention the property of Mary B. Gray separately from that of S. M. Beard, minutely describing the same. The latter
1. When S. M. Beard took title to the property belonging to the syndicate, he signed declarations of trust, which were given to the several individuals, in which it was declared that they might be transferred by indorsement. These, with the assignments and releases thereof, were all carefully collected from the different members of the syndicate, or other transferees. At the time they were placed of record, in 1904, Mr. Dabney, as attorney for 8. M. Beard, had him execute a deed to A. Edgar Beard of the same property he had conveyed as trustee on June 23, 1903, and dated the deed back to the | -This was done in order to straighten Uae Wfe, wlucn liad, prior to the settlement with the other members of the syndicate, been held by S. M. Beard as trustee. It is contended by defendant’s counsel that this individual deed of S. M. Beard confirmed the title in A. Edgar Beard and terminated the trust, if any. A conveyance from cestui que trust to trustee, if executed solely for the purpose of lodging with the trustee a complete rec
2. And where the parties deliberately antedate a deed, or otherwise manifest an intention that it shall speak from its date, the courts will give effect to their intention: Cummings v. Newell, 86 Minn. 130 (90 N. W. 311).
It appears that S. M. Beard also executed a declaration of trust to A. Edgar Beard for his interest in the Eden property, and that he usually kept some memorandum of real property held in trust by himself and others. However, he appeared to rely upon an unrecorded certificate as much as upon a duly recorded conveyance of real estate.
The plaintiffs allege in their complaint, and the lower court found, that a deed had been executed by A. Edgar Beard in favor of S. M. Beard, which recognized S. M. Beard’s equitable title to the Kelly Butte property. S. M. Beard wrote to A. Edgar Beard under date of November 23, 1903, transmitting a deed for execution by the latter. No answer to this letter was found among the papers of the decedent, nor was the deed itself found. When S. M. Beard died the defendant took possession óf a number of the decedent’s papers, and a few weeks later took possession of the remainder, with the exception of a few which Mrs. G-ray had had for several years. These papers were kept by the defendant until January, 1911, the possession of which was secured through proceedings in the county court by the efforts of S. Boscoe Beard, executor, and Mary B. G-ray, then executrix of S. M. Beard’s estate. S. M. Beard continued to exercise dominion over the Kelly Butte property after the deed of June 23, 1903, up to the time of his death. During
Subsequently to the death of S. M. Beard, and while the defendant was executor of the decedent’s estate, he placed of record a mortgage for $5,000 on the Kelly Butte property in favor of one S. H. Bell. This mortgage was not given for any consideration. A release of the same was executed by Mr. Bell in favor of the defendant. This the latter, up to the time of the trial, had not placed of record. The defendant states in his cross-examination upon this subject: “I put the mortgage on record so that you could not get it and tie it up.” It appears that S. M. Beard at different times owned real property, the title to which was held in the name of the Beard Fruit Company, Mary B. Gray, A. Edgar Beard, and others.
3. While the decedent was in active business he held property in trust for several other persons, and it does not seem strange that he should convey his own property to his relatives in trust. Whether or not his fears of being overreached by some woman were well
We have read the evidence carefully, and have examined the several exhibits contained in the record. This is a family affair, and an extended recitation or discussion of the testimony would be of no advantage to anyone. Suffice it to say that the proofs are convincing, and clearly preponderate in favor of the plaintiffs.
4. It is contended by counsel for the defendant that there is no evidence to sustain the allegation in the complaint of an express trust, because an express trust must be shown by a writing. The defendant, A. Edgar Beard, received the property in question in trust for S. M. Beard, together with other parcels of real estate which had been sold and conveyed by A. Edgar Beard at the dictation of S. M. Beard, and the proceeds thereof turned over to the latter thereby executing the trust in part. A fiduciary relation is therefore shown to have existed between the defendant and the decedent.
5. There was no open breach of the trust until after the death of S. M. Beard. The partial performance of the trust takes the same out of the statute of frauds. Continued exercise of acts of dominion over real property by the cestui que trust, with notice to the trustee, as was given to A. Edgar Beard, and without protest from him, established the existence of the trust: Kollock v. Bennett, 53 Or. 395, 401 (100 Pac. 940, 133 Am. St. Rep. 840); Greenley v. Shelmidine, 83 App. Div.
6. It is a salutary maxim that the statute against frauds cannot be used as a cover for fraud. The complaint also sets‘forth in detail circumstances -which show that there was no gift intended, but that, on the contrary, a trust arose in favor of the grantor on the execution of these deeds. A resulting trust may arise where a conveyance is made without any consideration, and it appears from the circumstances that the granteé was not intended to take beneficially: Bispham, Prin. Eq., § 79; Bennett v. Hutson, 33 Ark. 762; Gay v. Hunt, 5 N. C. 141 (3 Am. Dec. 681); Williams v. Williams, 108 Iowa, 91 (78 N. W. 792); Lingenfelter v. Ritchey, 58 Pa. 485 (98 Am. Dec. 308).
The rule is stated in 39 Cyc. 60, as follows:
“Although real or personal property is transferred by a conveyance absolute in form, the transfer may be held to have been made in trust and the grantee to be a trustee, where the prior or contemporaneous acts, declarations, and agreements of the parties evidence an intent and understanding that the grantee was to take and hold the property for a trust purpose (citing Coffin v. Argo, 134 Ill. 276 [24 N. E. 1068]; Van Patten v. Campbell, 59 N. J. Eq. 653 [49 Atl. 1070]; Bridenbecker v. Lowell, 32 Barb. [N. Y.] 9; Hunter v. Hunter, 17 Barb. [N. Y.] 25; Hurley v. Walter, 129 Wis. 508 [109 N. W. 558]). It is not permissible, however, for one who has made an absolute conveyance of property to fasten a trust thereon by Ms own subsequent acts and declarations alone, although such subsequent acts and declarations are sometimes considered in connection with prior and contemporaneous ones in determining whether or not a trust exists, and there is no objection to the grantee subsequently declaring that he holds in trust. Within the meaning of the rules just stated, the facts and circumstances surrounding many
7. Tbe general rule is that an express trust may be proved, not only by express declarations, but also by circumstances from which its existence may be inferred, and to this end evidence of the acts and declarations, either oral or written, of the parties, as well as the surrounding circumstances, may be admitted and considered: 39 Cyc. 80; Kendrick v. Ray, 173 Mass. 305 (53 N. E. 823, 73 Am. St. Rep. 289); Barker v. Smith, 92 Mich. 336 (52 N. W. 723); Starbuck v. Farmers’ L. & T. Co., 28 App. Div. 272 (51 N. Y. Supp. 58); Brew v. Corliss, 65 Vt. 650 (27 Atl. 613).
At the time S. M. Beard executed the deed of July 22, 1897, to the Eden and Tabor Heights property he prepared and forwarded to A. Edgar Beard an exact duplicate of that deed, except that the day and month were left blank, and the names of the grantor and grantee were reversed. This deed, however, was not acknowledged by A. Edgar Beard until the 19th day of March, 1898, and is the one referred to as having been recorded after the death of S. M. Beard. This deed defendant claims was executed as a mortgage and left with his father, so that in case of defendant’s death it would secure the payment of the sum of $1,000 to S. M. Beard. This is not, however, substantiated by the evidence. The manner in which S. M. Beard carried on his business, and all the facts and circumstances of the case, indicate very strongly that at the time he executed the deed of the Kelly Butte property to A. Edgar Beard on June 23, 1903, he required and obtained a reconveyance from A.- Edgar Beard to himself, but never recorded the same. The Circuit Court so found.
8. Where the defendant relies upon a voluntary conveyance from a near relative, such as a confiding uncle,
The findings of the trial court were, in substance, correct. It follows that the decree of the lower court should be affirmed, and it is so ordered.
Affirmed.