91 Ind. 96 | Ind. | 1883
— The first paragraph of the complaint alleges that appellant was the owner of certain real estate in fee; that he executed jointly with his then wife, Mary Ann Mescall, a mortgage to Richard E. Stanton; that Mary Ann died, and the appellant afterwards entered into a marriage contract with
In our opinion one principle determines the validity of all these paragraphs, and that is this : An express trust can not be created by parol. As the appellant conveyed the land to Julia Tully by a deed absolute on its face, he can not destroy the effect of his conveyance by alleging that there was a verbal agreement that she should hold it in trust for both of them. Our cases are full upon this subject, and they are in line with the doctrine of the text-writers. Dunn v. Dunn, 82 Ind. 42; Owens v. Lewis, 46 Ind. 488 (15 Am. R. 295); Pearson v. East, 36 Ind. 27; Irwin v. Ivers, 7 Ind. 308; 1 Perry Trusts, section 79; 1 Greenl. Cr. 356, n.; 1 Hilliard Real Prop. 425.
There was no contract of sale, and the cases of Fisher v. Wilson, 18 Ind. 133; Wiley v. Bradley, 60 Ind. 62; Stephenson v. Arnold, 89 Ind. 426; Jarboe v. Severin, 85 Ind. 496, have: not the slightest application. It would be strange indeed if a party could be permitted, in the face of our broad and explicit statute, to use an oral agreement creating an express-trust for the purpose of charging the grantee with the value of the property conveyed by the deed. It would endanger all titles to hold such a doctrine. It finds no support in the cases, and has none in principle.
The appellant having, by an absolute deed, divested himself of all title to the land, is not in a situation to question the validity of the decree ordering its sale. One who has conveyed all his title to mortgaged property can not contest the validity of a decree ordering its sale. Having no interest in the land he has no right to interfere.
There is no showing that aj>pellant will be held to a personal liability on the judgment in the foreclosure suit, for the sale of the mortgaged premises discharged that debt, and, as he owns no interest in the land, the complaint shows no legal injury.
It is an established rule of pleading that a complaint must proceed upon some definite theory, and on that theory the plaintiff must succeed, or not succeed at all. A complaint can not be made elastic so as to take form with the varying views of counsel. Johnston v. Griest, 85 Ind. 503; Platter v. City of Seymour, 86 Ind. 323; Johnston, etc., Co. v. Bartley, 81 Ind. 406; Judy v. Gilbert, 77 Ind. 96 (40 Am. R. 289); Lockwood v. Quackenbush, 83 N. Y. 607; Salisbury v. Howe, 87 N. Y. 128. The theory upon which the complaint is constructed is that the parol agreement transformed the deed from an absolute conveyance into an instrument creating a trust, and as this theory is overthrown by the authorities the entire complaint is foundationless. This theory is the foundation of the complaint, and, as that falls away, the whole pleading must go down.
Judgment affirmed.