122 Kan. 357 | Kan. | 1927
The opinion of the court was delivered by
Esther Hurt brought this action against Edwin S. Drew, seeking a money judgment. She caused an attachment to be levied upon a 320-acre tract of land as his property. His father intervened, claiming to be the real owner of the land, although at the time of the attachment the paper title stood in the name of his son. The trial of this issue without a jury resulted in a judgment in favor of the interpleader, declaring him to be the owner of the land and the attachment to be without effect.
Findings made by the trial court showed these facts: In 1915 the
1. The plaintiff contends that the arrangement between the father and son by which the latter was to hold the title to the land for the benefit of the former was an attempt to create an express trust in realty by parol and was invalid because the statute provides that “no trust concerning lands except such as may arise by implication of law shall be. created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.” (R. S. 67-401.) This statute would be applicable and would invalidate the trust at the instance of the son if the action were one by the father to enforce it against him. But inasmuch as the son saw fit to recognize the oral trust as obligatory and perform its conditions there is nothing in the statute to prevent his doing so. And the plaintiff as an attaching creditor can reach only property of which her debtor is the actual and beneficial owner — not property to which he has only a naked legal title. (Polley v. Johnson, 52 Kan. 478, 35 Pac. 8; Mallory v. Thomas, 71 Kan. 562, 81 Pac. 194; see, also, 27 C. J. 307; 25 R. C. L. 736.)
2. As against a creditor of his own or as against his son the inter-pleader could not effectively assert title to the property if his conveyance to his son were made to hinder, delay or defraud creditors, or a creditor. Assuming the rule to be the same as between him and
“Where there are no actual creditors to be defrauded, and there is only a mental purpose to hinder imaginary creditors, equity will relieve against transfers of property without consideration.” (Hoff v. Hoff, 106 Kan. 642, 549, 189 Pac. 613.)
3. The matter of the son having mortgaged the land and used the proceeds to pay his owtn debts, for which his father was merely a surety, is of importance only as it may bear upon the question of the good faith of the arrangement between him and his father. The trial court’s decision is determinative of that issue.
The judgment is affirmed.