53 Minn. 123 | Minn. | 1893
The allegations of the complaint (denied by the answer) are that a conveyance of a certain lot in Minneapolis, executed by one Probst to defendant in September, 1890, was made without consideration, in trust for the use of the grantor, and the relief -asked is that it be adjudged the property of Probst, and subject to the lien 'of a judgment obtained by plaintiff against Probst in May, 1892, on an indebtedness contracted between June, 1891, and February, 1892: It is not alleged or claimed that the conveyance by'Probst was made with any intent to defraud his creditors, either existing or subsequent. In fact, it stands admitted that, at the date of the conveyance, he owed no debts, and there is nothing to show that that time he had in contemplation contracting any. Plaintiff’s r dit to maintain the action is predicated solely upon the propositio that
But t ie conveyance is not assailed on any such ground. Therefore, in "prder to recover, plaintiff was bound to prove just what he had alleged, to wit, that the conveyance was made in trust for the use of the grantor, Probst. But this it could not do by verbal proof any more than Probst could have done had he been plaintiff. To do so would be to disregard, not only the statute of frauds, but also a very elementary rule of evidence. That Probst could not have set up any such trust by means of verbal proof would not be claimed; but the case is as much within the statute of frauds and the mischiefs it was designed to prevent as if Probst himself had been plaintiff.
Counsel concedes this, for he says in his brief: “We make no claim under the oral trust, and we do not claim that the deed to Kistler was fraudulent;” his sole contention being that, although the oral agreement to hold in trust was void when made, yet because, pursuant to it, Probst, with the knowledge and implied consent of Kistler, remained in possession of the premises, and expended considerable money in repairs and betterments, the case is taken out of the statute “making the contract as good as though made in writing,” thus invoking, as we understand him, the familiar doctrihe of part performance. We regret that counsel has not furnished us more aid in his brief upon what he concedes to be the only point in the case; but it seems to us that the so-called “doctrine of part performance” has no application, and we have found no instant where it was ever applied to such a case.
Itgiis not a general doctrine of equity, but an invention of the cou; is to get around the statute, and prevent fraud, not by varying
Order reversed.
(Opinion published 54 N. W. Rep. 1063.)
Application for reargument denied May 9, 1893.