120 N.W. 550 | N.D. | 1909
This is an action for an accounting by the defendants, and in addition to an accounting the plaintiff asks to have a certain deed adjudged to be a trust deed. The facts stated in the complaint are, in substance, as follows: That the plaintiff and the defendants are the children and sole heirs at law of Andrias P. Svarverud and Helene Svarverud who, on October 21, 1892, conveyed to Hans Svarverud and Andrew Svarverud, two of the above-named defendants, the lands which are involved in this action, by a deed absolute in form. That said conveyance, although absolute in form, was made in trust for the grantors. That the grantees were to pay to the grantors during their lifetime the net proceeds of the lands, and after the death of either of the grantors the proceeds were to be paid to the survivor, and after the death of both grantors the lands were to be equally divided and conveyed to the four children of the grantors. The allegations of the complaint as to the conveyance and the purposes thereof are set forth in the following language: “That the said Andrias P. Svarverud and Helene Svarverud were moved and induced to convey the above-described land solely and only by reason of the confidence they had in the defendants, Hans Svarverud and Andrew Svarverud, and -because of the promise, then and there made by the said defendants Hans Svarverud and Andrew Svrveru-d that they .would pay the said net proceeds derived from the operation of said lands to the said Andrias P. Svarverud and Helene Svarverud for their maintenance and support during their lifetime, and after their death to divide the said land equally among the four children of the said Andria-s P. Svarverud and Helene Svarverud.” The complaint further alleged that there was no consideration for the deed, and that the consideration of $2,000 expressed therein has never been paid, and was not intended to be paid. The complaint alleges, further, that Andrias P. Svarverud died on the 27th day of June, 1902, and that the said Helene Svarverud'died on the 25th of October, 1906, and that from the time of the giving of the said deed, up to the 27th day of June, 1902 the said Andrias P. Svarverud remained in possession and control of the premises, and exercised supervision over the same, and received the rents and profits from said lands, pursuant to the agreement between the. grantors and the grantees in said -deed. The defendants Hans Svarverud and Andrew Svarverud -have been in possession and occupation of said lands, and the whole thereof, from the death of the said Andrius P. Svarverud up to the commencement of this action. That the reasonable value
It is first claimed that the -complaint fails to state that the grantors in the deed, being Andrias P, Svarverud and Helene Svarverud, were -the owners of the land when they -conveyed the same to the defendants, and entered into the agreement with reference to sard lands. There is no direct allegation of -ownership in the complaint, but facts are stated therein from which a presumption of ownership arises. The fact that the grantors were in possession -of the land when the-deed was executed and delivered, and remained in such possession until the death of Andrias P. Svarverud, is shown by the •complaint. We deem thes-e allegations of possession sufficient as allegations of ownership. See section 7317, subds. 11, 12, Rev. Co-des 190-5. It is also claimed that the demurrer w-as properly sustained, for the reason that the complaint contains no allegations of fra/u-dy) A trust relationship may be enforced, and the refusal to enforce it declared constructively fraudulent, although n-o fraudulent -conduct or acts are shown as a fact. Implied or constructive fraud is sufficient to warrant a court of -equity in declaring a -deed absolute in form to be in trust for the grantee, or in trust for some other person at the gran-tor’s request. A court of equity will enforce a trust agreement under such -circumstances, although the requirements -of the statute of frauds have not been- -complied with. The agreement is enforced because it would be'inequitable and unjust to -permit the grantee to profit by his wrongful -conduct in refusing to execute and carry -out the terms -of his agreement.
In Beach on Trusts and Trustees, § 225, the -rule is stated as follows : “Equity will make a person the constructive trustee for property which he has acquired by fraud, wherever it would- be in conflict with justice to permit him to hold it in- his -o-wn right. Where
The respondent claims that no confidential relations are presumed to exist between parent and child to the extent that a deed from parent to child can be presumed fraudulent. Under what conditions and circumstances confidential relations will be presumed between parties we need not pass upon in this case. The confidential relation is alleged as a fact .in the complaint, and, so far as the demurrer is concerned, is deemed to be a fact. Respondent claims that the complaint states only conclusions, and not facts, in alleging that relations of confidence existed between the parties in this case. The allegations are sufficient, although attacked by demurrer. They show that the conveyance was executed in reliance upon the fact of confidence. See Brison v. Brison, 90 Cal. 323, 27 Pac. 186. In that case the transaction was held constructively fraudulent.
The complaint is silent upon the question whether the trust agreement was in writing or oral. Under such circumstances the complaint is not subject to demurrer, and the agreement will be presumed to be in writing. The parties will be presumed, in the absence of a contrary allegation or showing, to have entered into -a binding agreement. Conceding, for the purpose of this case only, that the complaint may be attacked by demurrer because it fails to show that the provisions of the statute of frauds were not complied with, the demurrer should have been overruled on this ground also. See 9 Enc. Pl. & Pr. p. 701.
The order sustaining the demurrer is reversed, and the cause remanded for further proceedings.