60 P. 385 | Or. | 1900
delivered the opinion.
The plaintiffs commenced this suit November 6, 1897, to set aside the deed of the defendant Adelaide'Bloch, conveying certain real property to her children and co-defendants, Bessie, Viola, Sophie, and Bertha Bloch, and to subject said property to the satisfaction of a judgment given and rendered in the Circuit Court of the State of Oregon for Multnomah County, June 30, 1897, in favor of the plaintiff F. L. Richmond and against the defendant Adelaide Bloch and others, for the sum of $1,300, and $94.15 costs and disbursements. The action in which the judgment was rendered was commenced March 27, 1897, and was for a malicious prosecution instituted by the defendants therein against Richmond March 9,1897. The conveyance complained of was made March 31, 1897, which it is alleged was voluntary, and made for the purpose of cheating, wronging, and defrauding the plaintiffs, and preventing them from realizing the amount due on said judgment. The plaintiffs other than Richmond claim an attorney’s lien upon the judgment. The defendants, for a separate defense, set up that H. F. Bloch, who died May 6, 1884, was the husband of the defendant Adelaide
It is claimed on the part of defendants that, the verbal or parol trust having been executed by the deed of the property to the children, such deed cannot now be set aside ; while, on the other hand, it is contended that, as the alleged trust rests in parol, it is within the statute of frauds and is incapable of establishment, and that, not having been executed until plaintiffs’ claim for damages had accrued, the defendant Adelaide Bloch could not dispose of the property by voluntary conveyance, to the prejudice of plaintiffs, and therefore that it is subject to be applied to the satisfaction of the judgment. And this is the only question presented.
That Richmond is one of those protected by statute against the conveyance of any estate or interest in lands with the intent and for the purpose of defrauding “creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands” (Hill’s Ann. Laws, § 3059),
It is not necessary, however, that the writing declarative of the trust should have been executed contemporaneously with the instrument under which the trustee acquired and holds the property. Any subsequent acknowledgement thereof, by deed or other writing, sufficiently clear and explicit in its terms and conditions to manifest the purpose and capacity in which he holds, will
While the land was in the name of Adelaide Bloch, although she held under the parol trust, and was not in fact or in good morals, according to the allegations of the answer, the real owner, she could have, under the authorities, repudiated the trust, and sold or incumbered the property, at her absolute will and discretion ; and no one could have said aught against it or disturbed the transaction, because the real character in which she dealt with the property would not have been susceptible of proof. But, acting upon her alleged moral.obligation, she executed the trust after the plaintiffs’ demand against her accrued, by conveying to the alleged cestuis que trustent. Now, can she and the cestuis que trustent justify her act in this regard against any right that plaintiffs may possess to have their demands satisfied out of this property ? As between the parties to the transaction, it is clear there can be no revocation of the executed trust. But the plaintiffs, who are not parties thereto, seek to have the transaction which consummated the parol trust engagement set aside as fraudulent and void because in contravention of their rights as creditors. A creditor has the right to have the debtor’s property applied to the payment of his debts, but not the property'of another, unless it may be in some instances where he has been misled to his disadvantage in reliance upon the acts of those to whom it belongs. Now, in order to support the defense, it is necessary to prove the parol trust, which is a link in the chain of transactions leading to the executed trust. The case
The same question arose in a later case, — that of Hays v. Reger, 102 Ind. 524 (1 N. E. 386). In that case William Reger conveyed by absolute deed, without consideration, to John Stump, upon a parol trust that the title should be held for the benefit of Reger. Subsequently Stump and wife, by direction of Reger, conveyed to Reger’s wife. While the legal title was in Stump, Hays and Wiles recovered a judgment against him, and they sought to have the proceeds of the premises applied to the
The defendants have set up another defense, also, by way of set-off, to which a demurrer was sustained, but thpre was only the one question insisted upon here. Hence the demurrer will be overruled as to the defense here discussed, and sustained as to the other, and it is so ordered. The cause will be remanded for such further proceedings as may seem meet in the premises. Reversed.