63 Minn. 5 | Minn. | 1895
Maria B. Dayton (or, since ber remarriage, Maria B. Nell) is tbe mother of Lyman O. Dayton. She was formerly tbe owner of all tbe real estate bere in controversy. May I. Dayton was tbe wife of Lyman C. Dayton from some time prior to 1868 until tbe time of ber death, on June 8, 1891. From time to time, between 1868 and 1880, Lyman C. Dayton procured bis mother, by various deeds, to convey portions of said real estate to bis wife, and procured his mother’s attorney in fact, Gen. R. W. Johnson, to make in ber name other deeds of other portions of said real estate to bis said wife. Lyman O. Dayton himself received these deeds, and put most of them on record. In this way tbe title to all of said real estate became vested in bis wife. This action was brought by Lyman O. Dayton to have it declared by tbe court that May I. Dayton held all of said real estate in trust for him. Since his death, which occurred after tbe trial, the action has been continued by his executor. James C. Reed, tbe son and devisee of May I. Dayton, was appointed ber executor, and be is made defendant. The other defendants claim title to tbe greater portion of this real
1. The original complaint alleges that in 1868, and ever since until the time of her death, May I. Dayton was the wife of plaintiff Lyman C. Dayton. After the commencement of the trial, plaintiff moved to amend his complaint by alleging that she never was his wife, but that prior to her marriage with him, to wit, in 1835, she married one Willoughby H. Reed, and continued to be his wife until he died, in 1890; that plaintiff always supposed she was his wife; and that she fraudulently procured plaintiff to take all of said conveyances to her, instead of to plaintiff himself, by fraudulently holding herself out to him as his lawful wife. The amendment was intended to raise in plaintiff’s favor a trust ex maleficio in her. The court denied the motion, and this is assigned as error. It is well-settled law that such a motion to amend a pleading is addressed to the discretion of the court, and we cannot see that in this case the court below abused its discretion.
2. The plaintiff offered in evidence two unrecorded deeds purporting to be made by May I. Dayton and Lyman C. Dayton to one Stevens, one dated September 22, 1880, and the other January 5, 1887. These were followed by showing a subsequent unrecorded conveyance from Stevens to Lyman C. Dayton. These conveyances purported to transfer the title to all of said real estate from May I. Dayton to Lyman O. Dayton. The trial court found in effect that the first two deeds are forgeries, and, so far as they purport to be the deeds of May I. Dayton, we are of the opinion that the finding is sustained by the evidence. We will not discuss this evidence in detail, but will say that not only did the developments on the trial seem to warrant the court’s finding, but the fact that for many years, both before and since his wife’s death, Lyman C. Dayton has sought through the courts to recover this property, but has never before claimed to have ajiy such conveyances of it, is also a circumstance tending to support that finding.
3. Lyman O. Dayton also offered in evidence a written instrument
As we understand the- findings of the trial court, he found this instrument also to be a forgery; but whether or not the finding is sustained by the evidence we will not consider, as we are of the opinion that in any event the instrument is void under the statute. G-. S. 1894, § 5534, provides: “No contract between a husband and wife, the one with the other, relative to the real estate of either or any interest therein, shall be valid, nor shall any power of attorney or other authority from the one to the other to convey real estate or any interest therein be of any force.” If by the conveyances from Mrs. Nell to May I. Dayton the title to the property became absolutely vested in the latter, so that her husband had no valid right or claim to it, except such inchoate right as he had by reason of being her husband, then under this statute there was no written instrument which she could make which would give him any greater right. If she could not by any such written contract directly vest in him any such right, she
4. There is no question better settled than that a mere verbal declaration of trust, where there is no fraud or bad faith except that which arises from merely refusing to carry out the promise, is void as within the statute of frauds (G. S. 1894, § 4213) and the statute of uses and trusts (§ 4280). Mercantile Nat. Bank v. Parsons, 54 Minn. 56, 55 N. W. 825; Connelly v. Sheridan, 41 Minn. 18, 42 N. W. 595. See, also, Wolford v. Farnham, 44 Minn. 159, 46 N. W. 295; Randall v. Constans, 33 Minn. 329, 23 N. W. 530.
5. The next question is, was there a trust ex maleficio by reason of any fraud or artifice practiced by May I. Dayton which induced the conveyances of the property to her?
Lyman C. Dayton was the only' child of Mrs. Nell. . The property was originally a part of his father’s estate, and it sufficiently appears that the conveyances by her to his wife were intended largely for his benefit. The testimony offered.on behalf of plaintiff shows that May T. Dayton had little or nothing to do with procuring those deeds. But Mrs. Nell testified that before any of the deeds were made to May I. Dayton, the Avitness was told by her that she had no relatives. Said the witness: “Whenever I talked with her, she always told me that she had no relatives, that her mother died in a lunatic asylum, and that her people were all dead, and she had nobody but Mr. Dayton. Time and again she told me that.” “Q. What else did she say? A. Well, that she had no other relative; Mr. Dayton was all the world, all she had, all the relative or friend she had, and if she died her property Avent to Mr. Dayton.” “Q. What representations at the time those deeds were made, if any, did May I. Dayton make as to her having any children? A. She said she had no children, — never had.” This testimony is repeated and reiterated time and again in different forms, is corroborated to some extent by the testimony of Lyman C. Dayton, and is not directly contradicted by any evidence in the case.
This disposes of the case, except as to one question. The trial court found as a conclusion of law that as the surviving husband of May I. Dayton, deceased, Lyman C. Dayton is the owner of an undivided one-third of all of said real estate, “subject to the payment of the debts of said deceased and the administration of said estate of May I. Dayton, and that said plaintiff Lyman C. Dayton has no other title to or right or interest in said real estate, or any part or portion thereof.” To what extent, if any, his statutory share of his deceased wife’s property is subject to her debts, we will not consider. This action is not a proper one in which to determine that question, but it should be left open for determination in the probate court, which has exclusive original jurisdiction for that purpose. We are of the opinion that the portion of the fourth conclusion of law above quoted should be modified so as to read as follows: “Subject to the rights of the creditors of said deceased and those holding claims against her estate, all of such rights to be determined by proper proceedings for that purpose.”
It is ordered that the conclusions of law be so modified, and that in all other respects the order appealed from be affirmed.