18 F. 619 | U.S. Circuit Court for the District of Minnesota | 1883
It is necessary to the success of the complainant, upon the admitted facts, that the defendant should be divested of the legal title obtained by the purchase at the foreclosure sale. The defendant stands in no better position than the son of the complainant, and to sustain the bill the court must declare the deed to the son, abso-luto and unconditional on its face, a mere power granted by the mother, or that ho held the land in trust for her. The complainant’s solicitor insists the conveyance was a power to do some act in relation to real estate, and appears to disclaim that a valid trust was created, either express or resulting. The legal title confessedly-passed by the quitclaim deed. There is no express trust declared in the deed; and the purpose for which it is claimed the deed was given is not one which could be the subject of an express trust by a conveyance from the mother to the son. There could be no resulting trust, for the payment of taxes, as alleged in the bill and admitted by the demurrer, is not satisfactory evidence to prove it; besides, the deed from complainant to her son refutes it. The statute of frauds and the rule of evidence will not permit a deed absolute on its face to be changed into one of trust by parol, unless there be fraud, accident, or mistake. There is nothing of the kind charged in the bill; indeed, the allegations are that the deed was executed voluntarily, and without accident or mistake or fraud on the part of her son. in procuring it, and that it was given merely for the purpose of enabling her son to defend the title to the premises against a threatened suit attacking the same. Is it a mere power to act for her in the alleged threatened litigation ? It may be conceded that when a trust is properly created, which is not authorized by the statute, it can be sometimes sustained as a power, but it must be a power recognized as valid by the law relative to powers, and the deed must contain a suitable clause granting the power.
There is nothing in the deed from the mother to her son expressing any design or intention to grant anything different from what was conveyed, and this bill cannot be sustained, in my opinion, without overturning a rule of law and evidence established for the security of all property. Consult Noel v. Noel, 1 Iowa, 423; Ratliff v. Ellis, 2 Iowa, 59; 21 Pa. St. 263; 10 Allen, 15; Rev. St. Minn. “Uses and Trusts,” cc. 63, 64, defining powers.
It is not necessary to consider the other questions presented. Demurrer sustained, and decree ordered dismissing bill.
