Montgomery v. Craig
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Opinion of the Court
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Elliott, J.
It is alleged in the complaint that the appellant, the plaintiff below, purchased the land in dispute in January, 1881; that by an agreement made with his wife, Lucy Montgomery, he caused the conveyance to be made to her; that the land was taken in trust by Lucy Montgomery ; that the purchase-money was all paid by the plaintiff; that *49 Lucy Montgomery died in 1887, and that the appellees are her heirs at law.
Filed April 10, 1891.
As the relation of husband and wife existed at the time the deed was executed, there can be no resulting, or implied, trust. Lochenour v. Lochenour, 61 Ind. 595 .
If it were possible for the plaintiff' to succeed in any event, it could only be for the reason that his wife agreed to hold the land as his trustee. Whether she had capacity to make a contract binding her to hold the land as her husband’s trustee is a question we deem it unnecessary to decide, inasmuch as our judgment is that a parol agreement between husband .and wife, in such a case as this, is ineffective. As no resulting trust can arise, the appellant can not possibly succeed, except upon the theory that an express trust was created in his favor by the parol agreement; but, as the law forbids the creation of an express trust by parol in cases of this character, the only theory upon which it can even be plausibly .argued that he can succeed is wholly untenable. Moore v. Cottingham, 90 Ind. 239 ; Mescall v. Tully, 91 Ind. 96 ; Columbus, etc., R. W. Co. v. Braden, 110 Ind. 558 ; Thomas v. Merry, 113 Ind. 83 ; Anderson v. Crist, 113 Ind. 65 .
This case is not a member of the class represented by the case of Catalani v. Catalani, 124 Ind. 54 , but belongs to an entirely different class. Here, no trust can possibly arise by implication, for no fraud is shown, and the relation of the parties forbids that a trust be implied.
The case made by the complaint is one wherein the plaintiff assumes to overthrow a perfect deed by a bald parol .agreement, and this the law will not permit.
Judgment affirmed.
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