161 Ind. 519 | Ind. | 1903
— Appellee brought this suit against appellant to enforce an alleged express trust. A demurrer for want of facts was overruled to the additional paragraph of complaint. A trial of said cause upon said paragraph of complaint resulted in a finding, and, over a motion for
Appellant insists that the court erred in overruling the demurrer to the additional paragraph of complaint. It appears from the additional paragraph of complaint that on and prior to December 1, 1893, appellee, a son-in-law of appellant, was the owner of eighty acres of land in Grant county, Indiana, described therein; that there were mortgage and ditch liens on said real estate amounting to $1,869, and that he was otherwise indebted in the sum of $400; that he also owned a note then due for $205.43; that said note was assigned to appellant, and that said real estate was conveyed by appellee and his wife to appellant in trust that he would pay said liens on the land and said $400 indebtedness of appellee, sell said land, collect said note for $205.43, and, after reimbursing himself for the said sum paid out for appellee and retaining a reasonable compensation for his services, pay the remainder of the amounts received for said land and collected on said note to appellee; that appellant has paid said liens and other indebtedness of appellee as he promised to do, but has failed, neglected, and refused to sell said real estate or otherwise execute said trust, and has cut timber on said land and sold the same for $500, and converted the same to his own use; that said real estate was worth $3,000 when conveyed to appellant and is now worth $4,000. Prayer that appellant be required to sell said land, render an account, of the proceeds, and, after payment of all amounts paid out by him and for debts, expenses, and trouble, that he be directed to pay balance remaining to appellee, and on his failure to do so that a commissioner be appointed to carry the decree into effect. The writing signed by appellant upon which said pleading rests and which was made a part thereof was a letter written by appellant to appellee, and reads as follows: “Dec. 14th, 1903. Well, ITarve, I received a letter from you last night
It is settled that to create a trust it is not necessary that the deed conveying the property to be affected by the trust shall contain the declaration of the trust upon which the same is held. The statute (§3391 Burns 1901, §2909 R. S. 1881 and TIorner 1901) is satisfied if the trust has been manifested or can be proved by any writing under the hand of the party to be charged, or of the party who is enabled to declare the same, provided the fiduciary relations, terms, and conditions of the trust are set forth with sufficient certainty. Letters, receipts, or other writings signed by the trustee may be sufficient to establish a trust. Ransdel v. Moore, 153 Ind. 393, 400, 401, 53 L. R. A. Y53, and authorities cited. While said letter, as appellant contends, may be indefinite, ambiguous, and of doubtful construction as to some of its terms, yet, when considered in connection with the averments of said paragraph of complaint of which it is a part, we think no error was committed by the court in overruling .the demurrer for want of facts. '
During the progress of the trial the court, on objection of appellee, excluded evidence properly offered by appellant to prove the position, situation, circumstances, and surz’oundings of the parties to said deed azzd letter, izz order
The court also excluded evidence as to the conduct of the parties in reference to said land subsequent to the execution of said deed and the writing of said letter. Appellant claims that such evidence was admissible on the ground that the parties had thereby given a practical interpretation to said deed and letter showing that the title conveyed to appellant was absolute and not in trust. This ruling of the court was not assigned as a cause for a new trial, and is not, therefore, before us for decision. See, however, on this subject, Gaylord v. City of Lafayette, 115 Ind. 423, 430, 431, and cases cited; Reissner v. Oxley, 80 Ind. 580, 584, and cases cited; Roush v. Roush, 154 Ind. 562, 569, 570, and cases cited; Bever v. Bever, 144 Ind. 157, 164.
It is clear that the court should have admitted evidence as to the situation, circumstances, and surroundings of the parties to said contract when executed.
Judgment reversed, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.