96 Wis. 476 | Wis. | 1897
It is vigorously contended that some of the vital findings of fact made by the court are not justified by .the evidence, but examination of the case convinces us that the contention, cannot prevail.
The facts, in brief, are that Gordon bought 260 acres of land with the money of the defendants Pede, and took title in his own name with the consent of the Pedes. As he pur-, chased the various parcels of land, Gordon gave to the Peehs written declarations, stating, in effect, that the Pedes had advanced the money to pay for the land, and owned the same, and that he (Gordon) held the title in trust only for them, and subject to their direction. These declarations, were not placed on record, and in fact most of them were not execufed so as to be entitled to record. The plaintiffs extended credit to Gordon, knowing that he had title to the lands, but not relying upon his ownership of the lands. Neither Gordon nor the Pedes represented that Gordon .owned the lands, nor did the Pedes know that Gordon was contracting debts. Prior to the plaintiffs’ judgments, Gordon conveyed the lands to the Pedes, because they had paid the entire consideration therefor, and the acts of the Pedes
Upon these facts the defendants were entitled to judgment under the decisions of this court. Had Gordon represented to the plaintiffs that he owned the lands, and obtained credit thereby, the plaintiffs dealing with him on the faith of his representation and apparent ownership, the Pecks would probably be estopped from asserting any interest in the land until the plaintiffs had been paid. Hopkins v. Joyce, 78 Wis. 443. Such, however, was not the case. Neither Gordon nor the Pecks made any representations as to Gordon’s ownership of the lands, nor did the plaintiffs give Gordon credit relying upon his apparent ownership. Refore the plaintiffs obtained judgments, Gordon in good faith conveyed the lands to the Pecks, who had paid for them, and were entitled in good. conscience to the title. Thus, though the trusts were probably void, being mere passive or dry trusts not authorized by the statute, they were fully executed before the rights of any third persons had intervened, and hence will be protected. Karr v. Washburn, 56 Wis. 303; Begole v. Hazzard, 81 Wis. 274.
The plaintiffs invoke the aid of sec. 2090, R. S., which provides as follows: “When an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed absolute as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration.” The express trust here referred to must be one of the express trusts authorized by sec. 2081, R. S., as amended by ch. 290, Laws of 1883,. as these are the only valid express trusts now existing with reference to real property under our laws. It has been held, also, that the trust referred to in this section must be created by an instrument; in writing executed
By the Oourt.— Judgment affirmed.