Tillman v. Kifer

SAYRE, J. In '1891' Robert J. Tillman, being on the eve of a failure in business and a general assignment for the benefit of his creditors, made a deed to his sister, Mrs. Lucy E. Kifer, of certain lots in Tillman’s addition to the city of Bessemer on a recited consideration of $600. Now this bill is filed by the children of Robert J., averring that the lots were conveyed on the trust and confidence that the grantee would hold them for complainants, and would at a later time execute a deed to the alleged beneficial owners. There is no semblance of trust shown on the face of the deed. No facts are alleged, as that the consideration, or any part of it, moved- from the, complainants, with ah understanding that the beneficial ownership was to be in them, from, which a trust would result by operation of law, without. [405] express words of creation. Nor is there averment of nndne influence arising out of confidential relation, or other circumstances of fraud between the parties, to constitute the grantee a trustee ex maleficio, as was the case in Kyle v. Perdue, 95 Ala. 579, 10 South. 103, and Noble v. Moses, 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175, cited by appellants. The bill shows nothing-more than an effort to enforce a trust according to the alleged agreement of the parties to the deed; that agreement having been expressed by parol, and not otherwise. The defendants have denied the agreement, have averred that the transaction was of a character entirely different from that set up in the hill, and it may be said that the weight of the evidence is with them. But, apart from defendants’ version, the case made by the bill, and sustained by complainants’ theory of the proof, must fall under the condemnation of the statute which provides that no trust concerning- lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument' in writing, signed by the party creating or declaring the same.—Code, § 3412. All questions in this case wrere settled in Patton v. Beecher, 62 Ala. 579, to which • nothing can be added, McCarty v. McCarty, 74 Ala. 552, and Cresswell v. Jones, 68 Ala. 420, cited by appellants, were cases in which the trusts involved were expressed in writing. The decree of the court below must he affirmed. Affirmed. Dowdell, C. J., and Simpson and McClellan, JJ., concur.