Roddy v. Roddy

3 Neb. 96 | Neb. | 1873

Lake, Ch. J.

The decree of the court below, in this cause, cannot be sustained. The petition even if fully supported by the evidence, woidd not justify a recovery as to all of the land. It is not contended that a trust was declared as to any of the land, .except that portion of it known as the Compton tract, and yet the court found that one existed also as to the one hundred and twenty-seven and a-half acres purchased from one Calvert. The decree, therefore, to the extent that it affects this last mentioned tract, must be reversed as a matter of course.

"We will next inquire whether the defendants in error are entitled to any relief as to the residue. The petition shows substantially that in the year 1864, Michael Roddy, the father of the defendants in error, came from Canada to this state, where the plaintiffs, his sons, had previously settled and were then living, bringing with him a small amount of money, consisting of about three hundred and eighty-five dollars in gold coin, which he at once handed over to his son John, to be by him invested in land. That shortly thereafter, on the 28th day of May, John purchased the Compton land, being the undivided half of lot two in section twenty-nine, and thirty-two and a-half acres taken from the west side of the south-west quarter of section thirty-one, town nine, range fourteen, using therefor a portion of the funds thus intrusted to him by his father, under an agreement that he should take and hold the title in trust for the defendants in error. It is further alleged, that John in disregard of said agreement, procured the deed to be made from Compton to his brothers James and Patrick, who took the same without any consideration on their part, and with full knowledge of the rights of defendants in error. That afterwards John purchased the interest held by James and that he and Patrick now hold the legal title to the entire tract.

The plaintiffs in error, who were defendants in the court below, filed separate answers admitting the receipt of the money by John, and the purchase of the land at the time stated, but they expressly deny the trust. They allege that on the arrival of their father in Otoe county, he handed his money over to his son John for safe keeping, and after paying one hundred dollars to James,’and fifty dollars to John for money advanced by them to aid him in coming to this country, requested him to invest what remained in land. That after deducting the one hundred and fifty dollars going to James and John, the residue, amounting to some four hundred dollars in currency, together with upwards of twelve hundred dollars belonging to James and Patrick, which they had also trusted to John for this purpose, was put into a common fund and used in the purchase, not only of the Compton land, but also of an adjoining tract containing something over one hundred and twenty-seven acres, bought of John Calvert; the entire cost of both pieces being sixteen hundred and twenty-five dollars.

They further allege that their father’s name was not inserted in the deed by his own request; that he expressed a desire to have the deeds made to James and Patrick, with the understanding that he should have a home on the land as long as he should live. That afterwards, on the 27th day of February, 1865, in order to carry out this understanding, James and Patrick, at John’s instance, gave to their father a life lease to forty acres of the land so purchased from John Calvert, which he received as a full compliance with the agreement and understanding of all the parties at the time of the purchase; and that he still retains the same.

I have examined this record very carefully with the view of ascertaining whether it is possible to uphold the claim of the defendant in error to the Compton tract, or in fact to any portion of these lands, beyond the interest secured to him by said lease, even if the petition were properly amended so as to conform to the finding of the district court.

The defendants in error rely upon a parol declaration of trust, to which the plea of the statute of frauds might have been successfully interposed, had the plaintiffs in error seen fit to do so. In order however to fasten a trust on property of any description, by means of a parol declaration, the words employed must amount to a clear and explicit declaration of trust, they must also point out, with reasonable certainty, the subject matter of the trust, and the person who is to take the beneficial interest. Loose and indefinite expressions, and such as indicate only an incomplete and executory intention, are insufficient for this purpose. Hill on Trustees, 91.

Judging the testimony by this rule, I find myself entirely unable to reach a conclusion favorable to the alleged trust. James and Patrick, the immediate grantees from Compton, were not present when the purchase was made; they had intrusted the investment of their money to their brother John, in whose judgment and honesty, both they and the father, at the time, seem to have had the greatest confidence. It is certain, therefore, that they did not personally declare the trust, when they took the deed, and they could only have done so through their agent John. But did he declare it for them? In the first place there is no testimony that he had any authority so to do, and secondly, he denies most unequivocally that he did so. But if we loot to the testimony of the father alone, leaving John’s emphatic denial out of the question, we are no better off. His account of the transaction is altogether too indefinite and uncertain to base an express trust upon. He says, “ I gave John the money and he was to buy land with it in Otoe county for my youngest children by my second wife. He bought the place from Compton; be paid four hundred and twenty-five dollars for it. I told him to take the deed to James and Patrick in trust for my smaller children. Edward and Mary were the only ones of the plaintiffs then born. The provision was made only for Edward and Mary. Nothing was said about those that might be born after-wards.”

And the witness Compton, from whom the land was purchased, called on behalf of the defendants in error swears that at the time of the purchase, “ John said his father had the money to pay for it. That it was for a home for his father while he should live, then it was for his two brothers, and that was the reason the deed was made to them.”

But in addition to all this, the conduct of the parties, especially that of the father, in respect to the land, throws a flood of light upon the transaction, and confirms me in the belief that it was substantially as claimed by the plaintiffs in error. They insist that the understanding was, that their father should have a home on the land, thus bought with their joint means, and this we find secured to him by a life lease to forty acres of the land, of his own selection, in which lease, the amount of his contribution to the common fund invested in the land, is given as the consideration. He is also-relieved from the burden of taxes levied upon the land, by a provision incorporated in the lease that they shall be paid by the lessors. This insures to Mm the use of it, so long as he shall live, without any further charge or expense whatever. This we think corroborates very strongly the theory of plaintiffs in error in this case, and shows very satisfactorily, that in all this business, they have been very considerate and have exercised the utmost good faith towards their father. There seems to be no good reason why, at this late day, this arrangement should be disturbed.

The judgment must be reversed, and the action dismissed at the cost of the defendant in error. A special mandate will be sent to the district court to enforce this judgment.

Decree reversed, and cause dismissed.

Mr. Justice Gantt, and Mr. Justice Maxwell, concur.