185 Ind. 88 | Ind. | 1916
— Henry Westphal was the father of appellant and appellees. A few days before his death he conveyed all of his real estate, of the value of about $3,000, to his son to the exclusion of his two daughters. Appellees brought this suit to recover an interest in the land and succeeded in the trial court. There is some controversy between appellant and appellees as to the theory upon which the case was tried below. Appellant contends that the purpose of the suit as disclosed by the complaint and special findings was to set aside^the conveyance from Henry Westphal to appellant upon the ground of fraud and undue influence, while appellees contend that the purpose was to declare and enforce in their favor a constructive trust in the lands so conveyed. The conclusions of law and the decree indicate that the trial court proceeded upon the theory indicated by appellees, but, in view of the conclusion reached by this court, the thoery becomes unimportant.
The court found the facts specially and pronounced its conclusions of law thereon. The only questions presented on appeal arise upon the exceptions by appellant to the conclusions of law and upon the motion for a new trial, upon the ground that the findings are not sustained by the evidence. The special finding is quite lengthy but it will not be necessary to set out more of the facts so found than are required to present clearly the questions before the court for decision. The
It is asserted by appellees that facts found by the court in finding No. 14 are sufficient, when taken in connection with other facts found, to sustain the conclusion of law made by the court to the effect that appellant took the real estate in question by the deed from his father to be held in trust for his own benefit and for the benefit of his two sisters, share and share alike. The part of finding No. 14 which bears directly upon the question here presented finds substantially the following facts: That at the time of -the execution of the deed in question it was the purpose and intention of Henry Westphal, the father, that the real estate conveyed to appellant should belong to him and to his two sisters, appellees herein, share and share alike, and that appellant at the time knew this purpose and intent on the part of his father; that appellant, the grantee, encouraged and induced his father to believe that he, as grantee, assented to such purpose, intent and understanding of his father in making such
Appellant claims that these facts so found show nothing more than an attempt to create a -trust in land by parol, and he relies upon the proposition that an express trust in lands can not~be created- by parol contract. §4012 Burns 1908, §2969 R. S. 1881. Pearson v. Pearson (1890), 125 Ind. 341, 25 N. E. 342; Stonehill v. Swartz (1891), 129 Ind. 310, 28 N. E. 620. Appellees take the position that such facts should be considered in connection with other facts specially found which show the relation of father and son,- and that by reason of such relation, and by reason of other facts stated in the finding, the father at the time of the conveyance reposed confidence in his son; and that, when so considered, they are sufficient to show a constructive trust in favor of appellees, and that the conclusion of law to that effect' is warranted by the facts found.
We think that the facts shown by the part of finding No. 14 to which we have referred show that, at the time the deed was executed, the son knew that the father intended that the real estate described therein should go to him and his two sisters, and that he agreed with his father to hold the land, which the deed conveyed to him absolutely, in trust for himself and appellees. This agreement rested in parol as there is no finding that it was ever reduced to writing as part of the deed or otherwise, and it does not appear that anything was omitted from the deed which was intended to be embodied in the writing. To enforce this agreement would be to impress a trust created by parol upon a deed absolute on its face.
To withdraw a case from the operation of the statute on account of the violation of an oral agreement to hold in trust, which the statute provides shall not be made except in writing, is
The court is of the opinion that the ends of justice would be subserved by granting a new trial. Judgment is accordingly reversed, with directions to the trial court to grant appellants motion for a new trial.
Note. — Reported in 113 N. E. 299. Refusal of court to make requested findings, effect, 7 Ann. Cas. 380. Presumption and burden of proof as to undue influence respecting gifts inter vivos from parent to child, 35 L. R. A. (N. S.) 946; 17 Ann. Cas. 991; Ann. Cas. 1915D 711. Creation of constructive trusts in lands by parol, 115 Am. St. 786; 2 Ann. Cas. 778; 39 Cyc 169, 170. Sufficiency of evidence to establish constructive trust, Ann. Cas, 1916D 1194; 39 Cyc 191,