5 Alaska 478 | D. Alaska | 1916
The sole question seems to be one of law, to wit: What is the effect of the making of the deed by defendant to plaintiff in June, 1908? For the purpose of áscertaining the intention of the parties in this transaction a great deal of testimony was admitted, which might not ordinarily be admissible to contradict a written instrument. A good many letters from the plaintiff to the defendant were offered by defendant and received in evidence, which, meeting the requirement of the statute of frauds, seem to bind the plaintiff and estop him from making a contrary claim at this time. In the event that the plaintiff had retained said deed, executed by defendant in the year 1908, and the defendant had brought an action to have plaintiff declared a trustee, holding said property in trust for herself and children, the letters written by plaintiff to defendant would no doubt establish such a trust.
In Commentaries on the Daw of Evidence in Civil Cases, by Burr W. Jones, vol. 3, § 418, it is said:
“By the seventh and eighth sections of the statute of frauds it is provided that declarations or creations of trusts or confidences in lands shall he manifested and proved by some writing signed 'by the party who is by law enabled to declare such trust, or by his last will in writing; otherwise, they shall be void. The exception is made, however, as to trusts or confidences resulting by the implication or construction of law. In considering the class of express trusts referred to in this statute, it is to be observed that the trust need not be created by writing. It is a compliance with the terms of the statute if the trust be manifested and proved by writing, and, if so proved, it may be created by parol; and it is sufficient to show the existence of the trust by written evidence. The statute of frauds, requiring express trusts to be manifested or proven by writing was enacted for the benefit of those claiming title under deeds or other instruments absolute on their face, and not for the benefit of those seeking to defeat the operation of such deeds by showing that they were made upon trusts not appearing upon their face. In all cases, where a deed or instrument of conveyance is absolute on its face, and the grantor or his assignee seeks to defeat its operation by showing that the deed, though absolute in form, was, in fact, executed upon certain express trusts, the grantee may invoke the protection of the statute by requiring proof of these alleged trusts to be made in writing. The writing need not be in the form of an agreement be*482 tween parties; and any writing subscribed by the party will be sufficient, if it contain the requisite evidence.”
In the letter dated June 21, 1908 (Defendant’s Exhibit O), the plaintiff, referring to this deed, says:
“And I promise you that nothing shall be done with the paper [referring to this deed] without your knowledge and consent.”
In October,' 1911, the plaintiff wrote defendant (Defendant’s Exhibit T) as follows:
“You have the interest in the U. G. I. claims, and this you must guard well and closely, for the sake, hot of yourself, but for my children.”
On January 10, 1910, plaintiff wrote defendant (Defendant’s Exhibit V) as follows:
“I signed the contract only as a stockholder of the H. E. Company [Hubbard-Elliott Company], and in no way do so as an interested party in the U. G. I. property. My signature to the contract was followed 'by an avowal of no interest in these properties, and that my signing was not to be so construed, or my signature to the contract would be withdrawn.”
On April 19, 1912, plaintiff wrote defendant (Defendant’s Exhibit X) as follows:
“I can see plainly that within a very few years, perhaps it will be less than five years from now, when, if you are careful and steadfast, you can turn the U. G. I. interest into an immense fortune for yourself and the children. It must be done either by direct sale for very big money, or your interest fully protected in any combination you may make with others holding the balance of the property. At least never allow the title of that property to pass out of your hands without at least $75,000 in cash and an exceedingly good stock interest.”
On February 22, 1913, plaintiff wrote to defendant (Defendant’s Exhibit AA) as follows:
“The one-fourth interest in the U. G. I. which you1 deeded to me, I have asked for simply to do with it for you and the children. At no time nor under no circumstance have I ever had a thought respecting this property, other than to do with it for my children.”
He then in this letter suggests that he can best handle the property and says:
“All I want to say in relation to this matter is to do as your conscience and heart so dictates. If you think it is all yours, then retain*483 it. * * * I want you to know that I shall he content and accept your decision, whatever it may be, ii you can on your own initiative.”
It would seem that no language could be stronger, as indicating the purpose and intent of the plaintiff, over his own signature, to treat this property as belonging to the defendant, as he himself says, for the benefit' of their children. The fact of his long delay of nearly five years in asserting the right claimed by him raises a strong presumption against him.
“Delay is always a suspicious circumstance, and if prolonged may create a presumption against the validity of a right which might otherwise be deemed established.” 16 Oyc. 160.
If the plaintiff was morally and justly entitled to some share in the property in controversy, the time for asserting it was during the divorce proceedings had between himself and defendant. The defendant’s home, ever since their marriage 25 years ago, has been in San Diego, Cal. If the plaintiff chose to acquire a different legal residence for himself, so he could and did maintain the divorce action against the defendant, he cannot now claim that he was unable in that suit to settle any questions of property right by reason of not acquiring jurisdiction over the property. He chose his own forum, and must abide the result. He freely and voluntarily brought about the present status between himself and his former wife as to the property involved, and this court should not be called upon to disturb this situation. There is nothing that appeals to a court of equity, moving it to grant relief to a plaintiff who has created a condition, by his own voluntary act, which was for a most commendable purpose (that of the future care and protection of his own children), where he has frequently affirmed this purpose in writing during a period of seven years, at the end of which time he desires to annul and disaffirm all of these, his own declarations. Every principle of estoppel and equity is against such a proceeding.
I am forced to the conclusion that the deed given by plaintiff to defendant in 1906 was a good and sufficient conveyance of the property involved in this case and title thereto has ever since been vested in the defendant; that the deed executed by defendant to plaintiff in June, 1908, was never in a
Findings and decree may be prepared accordingly.