| Wis. | Sep 21, 1886
The facts stated in the complaint furnish ample grounds for reforming the dded of the lot in question, executed by Cameron and MePhee to plaintiff, so that it shall express a trust in favor of the plaintiff, provided the law justifies such a reformation of any conveyance. If the deed, so reformed, will vest title to the lot, or any beneficial interest therein, in the plaintiff, it ought to be reformed.
At common law, the deed, so reformed; would create a valid passive trust. Tierney would hold under it the naked legal title to the use of the plaintiff, and the whole beneficial interest would vest in the plaintiff. Tierney could not convey a valid title to the lot, and it could not be reached by his creditors. Hence, were the common law in respect to such trusts in force in this state, it would be indisputable that the complaint states a valid cause of action, and that, under the averments thereof, the plaintiff would be entitled to the relief which he demands.
But trusts of this character have been abolished by statute in this state. E. S. ch. 96. We must therefore determine, under our statutes, the effect of a conveyance of land made to one person in trust for and to the use and benefit of another, without any further expression therein of the nature and purposes of the trust. The problem is not difficult, nor is the solution doubtful.
Sec. 2075, E. S., relates to such trusts. It reads thus: “ Every disposition of lands, whether by deed or devise, hereafter made, except as otherwise provided in these statutes, shall be directly to the person in whom the right to the possession and profits shall be intended to be vested, and not to any other, to the use of or in trust for such person; and, if made to one or more persons in trust for or to the use of another, no estate or interest, legal or equitable, shall vest in the trustee.” This statute does not render a conveyance void which in form is to one in trust for another. It only provides that in such a case no estate or interest, legal or
The conveyance by Cameron and kicPhee to Tierney, if reformed as demanded, will be within the above sections. Certainly the intention of all parties to it was and is that the plaintiff should have the right to the possession and profits of the lot. The reformed deed will vest those rights in him under the statute, and would have done so at the common law. It was therefore competent for the plaintiff to take a conveyance of the lot in either of two forms: He might have required it to be executed directly to himself as grantee, or he might take it to another grantee in trust for himself, and for his use and benefit. In either case he would get the whole estate in the lot, both legal and equitable. He chose to take his conveyance in the latter form. But by a mutual mistake in the deed, which Tierney admits and has done all he could to correct, the plaintiff has failed to obtain title to the lot. The complaint contains averments which satisfactorily account for the mistake, and demonstrate that it should be corrected. The appellant has parted with nothing on the faith of the deed in its present form, and is in no position to object to its reformation. There is no question of fraud in the case. Why, then, should it not be reformed, and made to express what the parties to it intended it should express ?
We conclude the complaint states a cause of action for the relief demanded. If the deed is reformed, that necessarily defeats the apparent lien on the lot of the appellant’s judgment against Tierney.
A motion is pending herein to dismiss the appeal because of an alleged settlement of the controversy before the appeal
By the Court.— The order of the circuit court overruling the demurrer to the complaint is affirmed.