Johnson v. Calnan

Mr. Justice Elliott delivered the opinion of the court. Two questions are presented by the assignments of error: Does the complaint state facts sufficient to entitle plaintiff to a reconveyance of the land as prayed for ? Are the findings and decree sustained by competent and sufficient evidence ? Both questions must be answered in the affirmative, unless the statute of fraud and perjuries compels a different answer. Section 6 of the statute reads as follows: “ Sec. 6. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.” Gen. Statutes, § 1515; Mills’ An. Stats. § 2019. Under the foregoing statute it has been held that the existence of a direct or express trust in lands cannot be estab [176] lished. by parol evidence. Von Trotha v. Bamberger, 15 Colo. 1. But where there is some written evidence showing the existence of a trust, the door is thereby opened to the admission of parol evidence to show the- truth of the transaction. Hill on Trustees, 61, 62; 2 Sugden on Vendors (14th ed.) 437; Browne on Statute of Frauds (3d ed.) § 111; 1 Perry on Trusts, § 78 et seq.; Bohm v. Bohm, 9 Colo. 106. By their special warranty deed of January 6, 1887, plaintiff conveyed the twenty-acre tract of land to defendant naming him “ trustee ” in the deed. Plaintiffs also produced further written evidence of the trust, as follows: “ Florence, 3, 23, 1888. “ Received of Chas. B. Toll, Esq., one thousand dollars, check No. 2489, part payment on block B, Carbondale, Colo. Vm. E. Johnson, trustee.” On the offer of this receipt in evidence, “it was conceded by defendant that he made a contract to sell a portion of the twenty-acre tract to Mr. Toll, and that said receipt was given- on account thereof. It was further admitted that neither Mr. Toll nor the said contract had any connection with the Aspen and Western Railway Company.” It was also “conceded by defendant that nothing has been done toward complying with the conditions of the alleged trust herein set up by the plaintiff.” In the Von Trotha-Bamberger Case, supra, there was no written evidence to indicate that Bamberger held the title to the land in trust; nor was there any written evidence to show that Von Trotha ever had any valuable interest in the land, except by virtue of the verbal agreement under which she claimed. In the present case, it is conceded that plaintiffs were the owners in fee of the premises in controversy; they conveyed the same to defendant, naming him “ trustee; ” the conveyance was for the nominal sum of one dollar expressed in the deed; and no other consideration was given or received, unless the contract for the sale of the forty acres be regarded as a consideration for the conveyance of the twenty [177] acres also, on the theory that the contract of January 5th and the deed of January 6th constituted but one transaction. The contract and the deed do not refer to each other; each instrument is complete in itself ; hence, prima facie, the execution of each instrument must be regarded as a separate transaction. The word “ trustee ” inserted after the name of the grantee in the deed executed by plaintiffs, and also affixed by defendant to his signature to the receipt, would seem to indicate something more than a mere descriptio persones; as a description of the person the word thus used is too general to amount to anything ; as a description it does not identify any one. In our opinion, the word “ trustee,” under the circumstances, indicates the intention of the parties that the grantee was to take the title, not in his individual capacity, but in trust for another, though the name of his cestui que trust is not disclosed by the deed. In Railroad Co. v. Durant, 95 U. S. 576-579, where a certain person was designated as “ trustee ” in certain deeds “ without setting forth for whom or for what purpose,” it was held that “ parol evidence was admissible to show these things.” The authorities upon this point are not altogether clear or uniform; but we are of opinion that the Durant Case announces a proper rule for the determination of the present controversy. Shaw v. Spencer, 100 Mass. 393; Brown v. Combs, 29 N. J. Law, 36; Selden’s App., 31 Conn. 548; 2 Pomeroy’s Eq. Juris. §§ 1009, 1010. In behalf of appellant it is contended that in the absence of fraud,, accident or mistake, the recital in a deed of a valuable consideration and acknowledgment of its receipt cannot be contradicted by parol evidence for the purpose of destroying the operative words of'the conveyance. Such is undoubtedly the rule as between the parties to the instrument. 2 Devlin on Deeds, § 834; Coles v. Soulsby, 21 Cal. 51. But in this case plaintiffs do not undertake to prove that their deed did not operate as a valid conveyance. They allege, as their evidence clearly tends to prove, that they conveyed [178] and intended to convey the premises to defendant as trustee, so that he might convey the premises, or such part thereof as might be necessary, to the Railway Company, provided the Railway Company should comply with certain conditions on 'its part to be performed, and that in default of such compliance the premises should be reconveyed to plaintiffs. The parol evidence produced by plaintiffs did not contradict nor tend to destroy the effect of the deed as a valid operative conveyance of the title for the purposes and uses thus intended. In this view, it is entirely immaterial that defendant Johnson by himself or by his attorney actually paid to plaintiffs or either of them the one dollar consideration expressed in the deed. As to the sufficiency of the evidence, little need be said. The cause was- tried, as it was triable, before the court without a jury. It was tried in open court on oral testimony, and upon certain instruments in writing admitted to be genuine. There was no material.variance between the pleadings and the evidence produced on the part of plaintiffs. The evidence tended to prove all the substantial averments of the complaint. Defendant’s version of the oral agreement was to the effect that his title to the twenty acres was to be absolute, unconditional and indefeasible ; that the land was so conveyed to him that he might locate the terminal improvements of the railway thereon, and so enhance the value of lots in the forty-acre tract which he had just acquired by his contract with plaintiffs ; and that plaintiffs had no other object or interest in the transaction than to get the $6,500 secured to them by the terms of such contract. If such was in fact the real transaction, plaintiffs would have had no reason for insisting upon the insertion of the word “ trustee ” in the deed after defendant’s name, nor is it reasonable that defendant would have accepted the deed in that form. He admits that he knew he was designated as trustee in the deed when he accepted it. Plaintiffs’ account of the transaction is the more reasonable from the fact that they had re [179] served certain lots to themselves out of the forty-acre tract, and were interested in its prospective value ; besides, they were residents of Carbondale, and were interested generally in the growth and prosperity of the town. But we need not further discuss the testimony or circumstances of the case. The parol evidence offered was competent under the issues, and clearly tended to support the claim made by plaintiffs. Its weight, as well as the credibility of the witnesses, was for the determination of the trial court. The findings and decree of the district court, requiring a reconveyance of the twenty-acre tract of land to plaintiffs, will be affirmed. Affirmed.