154 Iowa 207 | Iowa | 1912
In April of the year 1905, the Midland Blast Furnace Company, by quitclaim deed, conveyed to defendant Dolan a tract of land in Lee county, Iowa, consisting of something over sixty-one acres. Shortly thereafter, and on September 21st of the same year, Dolan executed and delivered to James H. Benihan, now deceased, the following paper: “This memoranda made this 21st day of September, 1905, certifies that I hold in trust for J. II. Benihan one-half of the land I secured from the Midland Blast Furnace Co. subject to claims of Anderson Smith and others and costs & expenses against same.” On December 12th of the same year, defendant sold nine and a fraction acres of said land, leaving about fifty-two acres still standing in his name. On September 20, 1902, G. II. Schumacher, now deceased, loaned to Benihan $1,200, taking as evidence thereof a promissory note, payable three months after date. Benihan added to his signature to the note the following, “Pastor of Saint Francis Church.” In other respects, the note was in the ordinary form of such instruments. Interest was paid on the note for the years 1903, 1904, and 1905. In 1906 Schumacher urged payment of the principal sum, and Benihan made some payments thereon, but, being unable to pay it all he (Benihan) attempted to secure the same in the following manner: Evidently, after consultation with Dolan, he (Dolan) wrote the following: “Bev. & Dear Sir: 1. Bev. Jas. Benihan has half interest subject to expenses and advances by me in fifty-two acres. 2. They are not incumbered. 3. As he has no title he could not mortgage. The title stands in my name. 4. I do not care to mortgage it for him, but with his consent on his order I would account to you the amount of $1,000 when I sell. I have refused an offer of $3,600 recently for this tract. A year ago I was offered just half of that. I will let it go when I get
“As soon as Mr. B. A. Dolan has sold certain fifty-two acres, in which Bev. James II. Benihan has one-half interest, said B. A. Dolan shall pay off a note of Bev. Gerh. II. Schumacher, signed by Bev. James H. Benihan, from the proceeds of said intended sale. Mr. B. A. Dolan is hereby authorized and ordered to act according to the above agreement. Keokuk, Iowa, June 15, 190G. Bev. Gerh. II. Schumacher. J. II. Benihan.
“I hereby promise and bind myself to act according to the above agreement. B. A. Dolan.”
In May of the year 1908, defendant Dolan paid $100 on the note to Schumacher, but since that has paid nothing, and now denies that he ever held the land in trust, or subject to any claim or lien of the deceased, Schumacher. Indeed, he avers in his answer that he sold the fifty-two acres of land on August 17, 1907. Because of this conveyance, judgment is asked against him for the balánce due on the note now held by Schumacher’s administrator. For some reason, not apparent of record, judgment was denied.
Nor is it necessary to the validity of such declaration that it be based upon a consideration passing to the trustee. Upon delivery of the declaration, a perfect and complete trust is established, and it will be enforced, although voluntary. Leeper v. Taylor, 111 Mo. 312 (19 S. W. 955). Nrom the opinion in that case, we quote: “The point is made, however, that it is void for want of consideration. It may be conceded that a court of equity will not enforce an executory agreement, based upon a voluntary consideration. But a settler possessed of a legal title may create a valid trust therein by a declaration that he holds the title in trust for the other person. A transfer of the title is not necessary. Bispham on Equity (4th ed.), section 67. Here the trust was duly declared by an instrument in writing and under seal. It is a perfect, complete trust; and such a trust will be enforced, notwithstanding the consideration is voluntary. Lane v. Ewing, 31 Mo. 75 (77 Am. Dec. 632). If a trust had been completely declared, the absence of a valuable consideration is immaterial. A perfect or complete trust is valid and enforceable, although purely voluntary. Pomeroy on Equity Jurisdiction (2d ed.), sections 996, 997. As this trust is perfect and complete, it must be enforced, though voluntary.” As somewhat in point, see Rea v. Wilson, 112 Iowa, 517.
It was not necessary to file the claim with the administrator of Benihan’s estate. It is not barred as against Dolan, and his promise is an original one. Even if collateral, it is not barred, for the debt is still in existence, although, perhaps, not enforceable against Renihan’s estate. Allen v. Moer, 16 Iowa, 307; O’Donnell v. Hermann, 42 Iowa, 60.
The trial court was in error in dismissing plaintiff’s petition, and the judgment must be reversed, and the case remanded for one in harmony with this opinion. Reversed and remanded.