Pillsbury-Washburn Flour-Mills Co. v. Kistler

Mitchell, J. The allegations of the complaint (denied by the answer) are that a conveyance of a certain lot in Minneapolis, executed by one Probst to defendant in September, 1890, was made without consideration, in trust for the use of the grantor, and the relief -asked is that it be adjudged the property of Probst, and subject to the lien 'of a judgment obtained by plaintiff against Probst in May, 1892, on an indebtedness contracted between June, 1891, and February, 1892: It is not alleged or claimed that the conveyance by'Probst was made with any intent to defraud his creditors, either existing or subsequent. In fact, it stands admitted that, at the date of the conveyance, he owed no debts, and there is nothing to show that that time he had in contemplation contracting any. Plaintiff’s r dit to maintain the action is predicated solely upon the propositio that [127] the conveyance was made in trust for the use of the grantor, and hence is beneficially his property. The conveyance to defendant was in terms absolute, but the plaintiff was permitted, over the objection and exception of defendant, to introduce evidence tending to prove an oral agreement between him and Probst that the former was to hold the title in trust for the latter. This was error. If the ■conveyance had been attached on the ground that it was made for the purpose of defrauding creditors, the want of consideration or a secret trust for the benefit of the grantor could have been proven by parol, foe the statute of frauds does not apply to secret trusts, and confidences for the purpose of defrauding creditors. But t ie conveyance is not assailed on any such ground. Therefore, in "prder to recover, plaintiff was bound to prove just what he had alleged, to wit, that the conveyance was made in trust for the use of the grantor, Probst. But this it could not do by verbal proof any more than Probst could have done had he been plaintiff. To do so would be to disregard, not only the statute of frauds, but also a very elementary rule of evidence. That Probst could not have set up any such trust by means of verbal proof would not be claimed; but the case is as much within the statute of frauds and the mischiefs it was designed to prevent as if Probst himself had been plaintiff. Counsel concedes this, for he says in his brief: “We make no claim under the oral trust, and we do not claim that the deed to Kistler was fraudulent;” his sole contention being that, although the oral agreement to hold in trust was void when made, yet because, pursuant to it, Probst, with the knowledge and implied consent of Kistler, remained in possession of the premises, and expended considerable money in repairs and betterments, the case is taken out of the statute “making the contract as good as though made in writing,” thus invoking, as we understand him, the familiar doctrihe of part performance. We regret that counsel has not furnished us more aid in his brief upon what he concedes to be the only point in the case; but it seems to us that the so-called “doctrine of part performance” has no application, and we have found no instant where it was ever applied to such a case. Itgiis not a general doctrine of equity, but an invention of the cou; is to get around the statute, and prevent fraud, not by varying [128] or contradicting written -contracts by parol, but by enforcing oral contracts actually made, but not otherwise enforceable, because not in writing. It is elementary that oral proof cannot be heard to ingraft an express trust on a conveyance absolute in its terms, and we have never heard of a case where it was done under the so-called “doctrine of part performance.” Order reversed. Vanderburgh, J., absent, took no part. (Opinion published 54 N. W. Rep. 1063.) Application for reargument denied May 9, 1893.