| Ala. | Dec 15, 1882
-The present bill was filed by Joseph B. and Fleming J. Kelly, against Eliza J. Karsner, their sister. All the parties, complainants and defendant, are children of Bus-sell J. Kelly, deceased. The purpose of the bill is to have a trust declared, and to obtain partition of the lands described in the bill. It is not disputed that, up to 1866, the title to the lands was in Busssll J. Kelly. At that time, he conveyed the lands, upon a recited valuable consideration, to his wife, Keziah W. Kelly, to her sole and separate use. The title remained in her until 1874, when Bussell J. and his wife, Keziah W., had a voluntary separation. Being about to separate, Mrs. Kelly proposed to re-convey the lands to Bussell J. Kelly. He declined to have the title re-conveyed to him, and, at his instance and suggestion, they were conveyed by Mrs. Keziah W., to Eliza Karsner, who was not present, and, at that time, had no knowledge of the transaction. She testifies, she was notified of it
The frame of the bill would indicate that, when it was filed, the expectation and intention were to prove that the conveyance was made to Mrs. Karsner, in express trust for her father; and the complainants bring this bill as lieirs-at-law of said Russell J., claiming in his right. Whether we consider the case of complainants as resting on such alleged express trust, or as relying on the doctrine of resulting trust — namely, that Russell j. Kelly paid the consideration money which induced Mrs. Kelly to convey to Mrs. Karsner, and therefore a trust resulted by implication of law in favor of said Russell J., — it would seem that, in either aspect, the bill is imperfect. It is shown that Mr. Kelly had other heirs; and if the lands were held in trust for him, whether by express ageement, or under legal implication, when he died, that beneficial interest descended alike to all his heirs, and all should be made parties to this suit.
All the testimony offered in proof of an express trust is oral, it not being alleged, or shown, that there was any writing declaring such trust. The testimony is as inharmonious and contradictory as can be found in the annals of judicial contestation, even since parties have been made competent witnesses in their own causes. The tendency of complainants’ proof is, not that a trust was created for the benefit of the father, but that the trust was for their benefit, in common with their sister, Mrs. Kars-ner ; and the proof on this point, even by complainants’ 'witnesses, is not in harmony. Some witnesses state, simply, that the elder Kelly only said his sons must have more land, without specifying quantity. Defendant’s witnesses testify there was no trust in either conveyance. Much of the testimony, on both sides, is mere hearsay. If such testimony were competent to establish an express trust, engrafted on an absolute conveyance of lands, we should hesitate before pronouncing complainants’ proof sufficient. Oral proof, to overturn a writing, should be clear and convincing. But such proof can not be heard, to engraft an express trust on a conveyance of lands, absolute in its terms.—Patton v. Beecher, 62 Ala. 579" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/patton-v-beecher-6510359?utm_source=webapp" opinion_id="6510359">62 Ala. 579. So, we must treat this case, as if the oral proof of intention had not been made.
It is contended, in the second place, that Russell J. Kelly paid a valuable consideration to Mrs. Kelly, for the conveyance she made to Mrs. Karsner, and that therefore a trust resulted to him to claim and have the title, because the valuable con
The doctrine of resulting trust is one of sheer implication ; and that implication maybe easily overturned. If a husband or father purchase lands with his own means, and have title made to his wife or child, the presumption of a resulting trust is overturned, and the contrary presumption arises, that the purchase and conveyance were intended as an advancement for the nominal purchaser. — Perry on Trusts, §§ 143-4, and the numerous authorities cited. So, even if Bussell J. Kelly paid to his wife a valuable consideration for the conveyance she made to Mrs. Karsner, his daughter, no implication of a trust arises in his favor.—Hatton v. Landman, 28 Ala. 127" court="Ala." date_filed="1856-01-15" href="https://app.midpage.ai/document/hatton-v-landman-6505700?utm_source=webapp" opinion_id="6505700">28 Ala. 127.
There is another insuperable obstacle to the relief prayed in this bill. The testimony which proves the transactions which resulted, first, in the conveyance to Mrs. Kelly, and then from her to Mrs. Karsner, shows clearly that the elder Kelly’s purpose was, to place the property beyond the reach of creditors, to whom he feared he would be made liable, as surety for others. Now, no matter what consideration he may have paid to his wife, Mrs. Kelly, for the conveyance shé made to Mrs. Kars-ner, the act of taking — intentionally taking — title in the name of his daughter, with intent thereby to delay, hinder, or defraud his creditors, disarms him of all right to recover, no matter what her agreement to hold in trust, or to re-convey, may have been. Not that such a conveyance gives her an honest right to hold, but, because of his vicious intent, he forfeits all right to recover.—King v. Avery, 61 Ala. 479" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/king-v-king-6510213?utm_source=webapp" opinion_id="6510213">61 Ala. 479; 3 Wait’s Act. & Def. 199.
Affirmed.