Oberlender v. Butcher

Lobingier, C.

This is a suit in equity to enforce an alleged parol trust in certain real estate claimed by plaintiff to have been purchased by her son as a home for her. At the time the alleged arrangement was first entered into, the son, Joseph O. Butcher, one of the appellants, had just attained his majority and had received from his father’s estate, through his guardian, the sum of $2,175 in cash. The ap-pellee, his mother, who after his father’s death had married a second time, was then living at Maryville, Missouri. It appears that. Joseph had decided to give his mother a portion of the money which he had just received, and the two went together to the bank, where $500 of it was deposited to the appellee’s credit, Joseph remarking to his mother, according to the testimony, “That’s yours for a home.” The son’s relations with the stepfather, it seems, were not harmonious, and the former claims that the gift was made on condition that his mother should leave her husband. She denies any conditions, however, and other witnesses avIio were present say that no such terms were mentioned. Shortly after this the son left Missouri and came to Coleridge, in this state. It seems to be conceded that before leaving it was arranged between himself and his mother that he was to select a place for a home for her, to be purchased Avith the $500. She testifies that soon after his arrival at Coleridge he Avrote her stating that he had found a place that he thought would suit, and asking her to send $330 or $400. There was some other correspondence betAveen the parties, but none *414 of the letters were produced in evidence, having been lost, and it does not appear what their content's were. The tract selected by the son consisted of about three and one-half acres. He testifies that a deed to him for this property was delivered between September 10 and 20, 1898, and that he paid for it out of his own money, but it is nowhere shown that this deed was recorded. He also testifies that he paid for the materials for building a house on this tract, and for the digging of a well, and that he built a barn on the premises. The cashier of the Mary-ville bank testifies that the appellee obtained from him a draft for $350 on September 16. and appellee says she sent this amount to ber son. The latter admits that he received some money from his mother, but says it was about the middle of October, after the lot and building materials had been paid for. When the house was ready for occupancy appellee and her husband came to Coleridge, and she testifies that she asked her son for the deed to the property on the evening of her arrival, and that he told her that her deed was in the bank. She .also says that she advanced him further sums to pay bills for materials, amounting in all to $58.20, and that she settled another claim of this kind by surrendering a note which she held against the claimant. The son admits that the mother asked him for a deed, and says that he refused to give one, and told her that the place belonged to him. The parties, including the stepfather, occupied the premises jointly from the fall of 1898 until the following June, when Joseph left, unable, as he claimed, to live longer with his stepfather. On January 8, 1900, Joseph executed a deed to the premises to appellant Meigs for an expressed consideration of $500, and the latter subsequently mortgaged the property to appellant Waite. The petition prayed for a cancelation of both deed and mortgage, and that the plaintiff-might be decreed to be the “real and equitable owner of the premises.” After a hearing of the cause, a decree was rendered in accordance with the prayer of the petition and from this, defendants bring the cause here by appeal.

*415 Appellants’ main contention is that no trust arose because appellee did not send the money before or at the time the property was purchased by. her son, and because the amount paid by her was not equal to the entire purchase price, and there was no agreement that she should have a specific share. The rules upon which this contention is based are applicable to resulting trusts or those which arise by implication of law from the presumed intention of the parties. Counsel on both, sides refer to the facts of this case as disclosing a resulting trust. But as we interpret them they show an express and not a resulting trust, nor, indeed, an implied trust at all. There was an express agreement between the parties that the son should select a suitable place for his mother's home, and that the $500 which he had given her should pay the purchase price. It was an instance where a donor enter(;<1 into an arrangement with his donee by which he became the trustee of the identical fund which he had just parted with as a gift, and the donee became the cestui que trust. It is obvious that such a trust is created by act of the parties, and is, therefore, express. The rules invoked by appellants have no application to express trusts, and the authorities on which they rely relate exclusively to resulting trusts. Perry, Trusts [3d ed.], sec. 132; Pickler v. Pickler, 180 Ill., 168 ; Botsford v. Burr, 2 Johns. Ch. [N. Y.], 404, 415; Reed v. Reed, 135 Ill., 482 ; Lescaleet v. Rickner, 16 Ohio C. C. Rep., 461; Graham v. Selbie, 8 S. Dak., 604; Fessenden v. Taft, 65 N. H., 39; Logan v. Johnson, 72 Miss., 185 ; 2 Pomeroy, Equity Jurisprudence, 1040.

Another objection to the decree is that the transaction is within the statute of frauds. As this is an express trust the statute is applicable here, and as the letters which passed between the parties were not produced there was no written evidence of the transaction. But the cestui que trust remitted her money on the strength of it, and afterward came from another state and took possession of the premises, and this, in the absence of writing, is a sufficient performance and execution of the trust to *416 take it out of the statute. 2 Reed, Statute of Frauds, secs. 889, 890.

Appellee and her husband were in the possession of the premises when appellant Meigs received his deed from the son, and also when appellant Waite made the loan and took his mortgage. The record shows that Meigs was her nearest neighbor, and that Waite’s agent who conducted the transaction for him was informed of appellee’s possession. Under the decisions of this court, therefore, these appellants were chargeable with notice, not only of the fact that appellee was in possession, but also' of her “right, title, and interest.” Uhl v. May, 5 Nebr., 157; Scharman v. Scharman, 38 Nebr., 39; Kahre v. Rundle, 38 Nebr., 315; Pleasants v. Blodgett, 39 Nebr., 741, 42 Am. St. Rep., 624 .

Whether in a proper proceeding Joseph Butcher might not be entitled to recover any sum which he has invested in the property in excess of that received from his mother we do not here determine, because he prays for no such relief in his answer and there is no satisfactory evidence as to just what the property cost. '

Complaint is made concerning certain interlocutory rulings in reference to the pleadings, but these can not be considered in the absence of a petition in error. The questions of fact as to alleged admissions by appellee we consider settled by the adverse findings of the court. We therefore recommend that the decree be affirmed.

Hastings and Kirkpatrick, CO., concur. By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.