Russ v. Mebius

Cope, J. delivered the opinion of the Court Field, C. J. concurring. The plaintiff conveyed to his father certain real estate in the city .of San Francisco, and the object of this suit is to set aside the convey [355] anee and obtain possession of the properly. The case was tried by a referee, and upon his report a judgment was rendered in favor of the defendants. The plaintiff appeals from this judgment, and contends that the facts found by the referee are sufficient to entitle him to recover. The ground upon which he relies is the want of consideration for the conveyance. It appears that the consideration was a verbal agreement by the father to make a will, and devise to the plaintiff certain property mentioned in the complaint. The father died without having complied with the agreement, and the plaintiff claims that he is entitled to be restored to his original rights. The referee finds that this agreement was the only consideration for the conveyance, but whether this is the consideration expressed in the conveyance itself, does not appear. Assuming that it is, we are unable to see why the case does not fall within the doctrine of resulting trusts. The agreement was void, and the conveyance was executed -without any consideration, express or implied. It is shown that the transaction was not intended as a gift, and as there was no consideration, a trust resulted in favor of the plaintiff by implication of law. Where a conveyance, says Story, is made of land or other property without consideration, expressed or implied, or any distinct use or trust stated, the intent is presumed to be, that it shall be held by the grantee for the benefit of the grantor, as a resulting trust. (2 Story’s Eq. sec. 1197.) “ This,” says the same author, “ is in strict conformity to the rule of the common law, applied to resulting uses, which, indeed, were originally nothing but resulting trusts. Thus, a feoffment, made without consideration, was, at a very early period of the common law, held to be made for the use of the feoffer. * * Be the origin of the doctrine, however, as it may, it is firmly established in equity jurisprudence in matters of trust. And it is not in any manner affected by the provisions of the Statute of Frauds, for that statute contains an express exception of trusts arising by implication, and transferred and extinguished by acts of law.” (Id. 1198.) Our opinion is, therefore, that the facts set forth in the report of the referee are sufficient to raise the presumption of a trust; and the enforcement of this trust is a right which the plaintiff may demand. The equities relied upon by the defendants, whatever may be their moral merits, are insufficient to constitute a defense. No implication of a trust arises upon a purchase of property by a parent in the name of his child. Prima facie, such a purchase is to be regarded as an advancement, and an implied trust in favor of the person paying the money [356] does not arise. Tins is one of the exceptions to the general rule, and it seems to be as well settled as the rule itself. “ Where property,” said the Master of the Rolls, in Sidmouth v. Sidmouth (2 Beavan, 447) “ is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an' advancement; the resulting or implied trust which arises in favor of the person who pays the purchase money, and takes a conveyance or transfer in the name of a stranger, does not arise in the case of a purchase by a parent in the name of a child.” (See 2 Story’s Eq. sec. 1202.) It is by no means clear that the defendants are in a situation to raise this question, but admitting that they are, them position is certainly untenable. The other points made are immaterial, and a more particular reference to them is unnecessary. It is not improper to notice a statement made on the argument of the case in reference to the contents of the conveyance, though the record itself is silent upon the subject. It was stated that the conveyance did not express the consideration for winch it was given, but acknowledged the payment of a nominal consideration in money. This is an important matter, and, if left open, may embarrass the action of the Court below, and become the basis of a second appeal. If the statement was correct, parol evidence was inadmissible to establish the trust, and the plaintiff, though entitled to a reversal, must eventually fail to obtain the relief which he asks. “ This distinction,” says Story, “ is to be observed in cases where a consideration, although purely nominal, is stated in the deed. If no uses are declared, the grantee will take the whole use; and there will be no resulting use for the grantor; because the payment, even of a nominal consideration, shows an intent that the grantee shall have some use, and no other being specified, he must take the whole use.” (2 Story’s Eq. sec. 1199.) The doctrine of resulting uses and trusts is founded upon a mere implication of law, and in general this implication cannot be indulged in favor of the grantor, where it is inconsistent with the presumptions arising from the deed. Unless there is some evidence of fraud or mistake, the recitals in the deed are conclusive upon the grantor, and no resulting trust can be raised in his favor in opposition to the express terms of the conveyance. In Leman v. Whitley, (4 Russ. 423) a son conveyed an estate to his father, nominally as purchaser, but really as a trustee, and in order that the father, who was in better credit than the son, might raise money upon it, by way of mortgage, for the use of the son. Before any money was raised, the father died, leaving a will, in which he [357] made a general devisee of all liis real estate. The suit was against the devisee, to establish the trust, and compel a reconveyance of the estate. The decision was adverse to the plaintiff, and the Master of the Rolls, in delivering his opinion, said: “ The question in this case would regularly have arisen upon an objection to the admissibility of parol evidence of the alleged trust. There can be no doubt of the moral honesty of the cláim made by this bill. But the question is, whether the plaintiff can be relieved consistently with the provisions of the Statute of Frauds, which, although it may bear hard upon the plaintiff in the particular case, was certainly called for by the public interest. There is here no pretense of fraud, nor is there any misapprehension of the parties with respect to the effect of the conveyance It was intended that thé father should, by a legal conveyance, appear to be the legal owner of the estate. There is here no trust arising or resulting by implication or construction of law.” The Court of Chancery of New York, in a case involving the same principle, said: “ No resulting trust can be raised in opposition to the express terms of the conveyance, and in favor of the grantor.” (Squire v. Harder, 1 Paige’s Ch. 494.) Judgment reversed, and the cause remanded for a new trial.