Illinois Steel Co. v. Konkel

The following opinion was filed June 1, 1911:

KeewiN, J.

The plaintiff claims the right to recover in this' action upon legal title to the land in question from the Swedes Iron Company through Eber B. Ward and his ex- *565 eeutor, and also insists that, even though the deeds to "Ward be in trust, still it is entitled to recover on several other grounds argued at length in the briefs of counsel for appellant; while on the part of the respondents it is claimed that the deeds to Ward were deeds in trust, and, Ward having failed to execute the trust during his lifetime, upon his death the title to the property passed to the circuit court under sec. 2094, Stats. (1898), which provides that upon the death of the surviving trustee of an express trust the trust then unexecuted shall vest in the circuit court, with the powers and duties of original trustees, and shall be executed by some person appointed under the direction of the court; therefore, it is argued, the plaintiff failed to prove title to the land or any right to recover in ejectment. Counsel for respondents also cites us to sec. 2090, Stats. (1898). As we have seen from the statement of facts, the deeds to Ward were absolute on their face, purporting to convey to him an absolute title, and the first question arising is whether the proof on the part of the respondents is sufficient to impeach the integrity of the title in Ward under absolute conveyances and establish that he simply received the property in trust. The trust claimed by counsel for respondents to have been established by the ■evidence is an express trust under subd. 5, sec. 2081, Stats.. (1898). So upon the respondents’ theory two questions are presented under this head: (1) Whether the deeds to Ward, .absolute upon their face, can be shown by oral evidence to be in trust; and (2) Whether the evidence, conceding it to be competent, is sufficient to establish a trust under subd. 5, sec. 2081, Stats. (1898).

There is nothing whatever on the face of the deeds to. Ward to indicate any purpose of a trust. On the contrary, the title is conveyed to Ward, his heirs and assigns, to have and to hold forever. It is unnecessary to cite authority in this state to the effect that in order to impeach a deed absolute •on its face the- testimony must be clear and convincing. As *566 said in Fillingham v. Nichols, 108 Wis. 49 , 84 N. W. 15 , “The proof should be such as to establish the facts beyond reasonable controversy. There can be no relaxation from this rule without greatly disturbing the integrity of titles.” To the same effect is Meiswinkel v. St. Paul F. & M. Ins. Co. 15 Wis. 147 , 153, 43 N. W. 669 , and numerous other cases in this court. Moreover, our statute, sec. 2302, expressly provides that 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 be created, granted, assigned, surrendered, or declared unless by act or operation of law or by deed or conveyance in writing, subscribed, etc. Under the foregoing statute and the decisions of this court it is well settled that a deed valid upon its face, conveying absolute title to the grantee named: therein, cannot be shown by oral evidence to be in trust-.. Topping v. Parish, 96 Wis. 378 , 71 N. W. 367 ; Bird v. Morrison, 12 Wis. 138 ; Pavey v. Am. Ins. Co. 56 Wis. 221 , 13 N. W. 925 . Now in the case before us the respondents have not only failed to establish by clear, convincing, and satisfactory evidence that the deeds to Ward were in trust, but they have practically failed to produce any competent evidence upon the point, and practically no evidence, competent or otherwise, that the absolute title to the property was not to. go to Ward, as appears on the face of the deeds. They seek to establish the trust by certain evidence tending to show that the land was bought for or in connection with others, under negotiations with such others and Ward, from the Swedes Iron Company, but there is no competent evidence that the deeds to Ward were or were intended to be in trust. On the contrary, the evidence of TIagerman, even conceding it to be-admissible, is to the effect that the intention was to take the property in the name of Ward for two reasons, viz.: (1) for convenience in conveyancing, and (2) because AVard obligated himself personally on the purchase for $125,000, and' *567 tbe property would secure Mm in a measure until the obligation was paid; and the resolution set out in the statement of facts also refers to the deeds to Ward as being made for convenience in deeding the property; and by this resolution Ward was authorized to receive the conveyance and hold the title. True, this resolution states that Ward- is to hold the property conveyed by the Swedes Iron Company in trust. This resolution or the record of it does not appear to have been signed by Ward, and no contract was produced signed by Ward declaring any trust. In the letter of Ward to Hagerman, also set out in the statement of facts, Ward speaks of taking the property in trust, but no real estate is described nor are the terms of any trust specified or defined. Parol evidence was admitted against objection to show that the subject matter of the purchase referred to in Ward’s letter to Hagerman was the property of the Swedes Iron Company in Dodge and Milwaukee counties; that the mills referred to in the letter were Milwaukee Iron Company, North Chicago Eolling Mill Company, and Wyandotte Eolling Mill Company; that the latter company was to have one fifth and the former companies two fifths each. There was some other evidence, documentary and otherwise, produced, but which in no way impeached the integrity of the deeds to Ward through which the plaintiff claims title. The only attack made upon the plaintiff’s chain of title is on the deeds dated June 29, 1869, from Swedes Iron Company to Ward, which deeds, it is claimed, were in trust for the use of the Milwaukee Iron Company, North Chicago Eolling Mill Company, and Wyandotte Eolling Mill Company, and further that the deed from Ward’s executor is ineffectual for two reasons, viz.: (1) that on the death of Ward the title held by him vested in the circuit court, and (2) that one of several executors named in the will of Ward could not convey, especially without license from the county court of Milwaukee county.

The trust claimed to have been proved is an express trust *568 ■under subd. 5, sec. 2081, Stats. (1898). Subd. 5 of tbis section provides:

“For the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon, the face of the instrument creating it, subject to the limitations as to time and the exceptions thereto relating to literary and charitable corporations prescribed in this title.”

The record is barren of competent evidence showing compliance with this statute. There is no sufficient evidence that any trust was declared by an instrument, much less that the trust was fully expressed and clearly defined upon the face of the instrument creating it. True, the trust need not necessarily be embraced in one instrument. It may be made up of several, but they must be so connected and in such form, when construed together, as to comply with the statute without the aid of oral evidence.

As we have seen, the resolution does not appear to have been signed by Ward, but even assuming for the sake of the argument that the resolution and letter of Ward are competent evidence, still they are not sufficient to meet the calls of the statute with reference to definiteness. It must be remembered that it is sought by this evidence to ingraft upon a deed, absolute upon its face, a trust, and this can only be done by clear and convincing evidence in writing. Fairchild v. Rasdall, 9 Wis. 379 ; Campbell v. Campbell, 70 Wis. 311 , 35 N. W. 743 ; Krouskop v. Krouskop, 95 Wis. 296 , 70 N. W. 475 ; Pavey v. Am. Ins. Co. 56 Wis. 221 , 13 N. W. 925 ; Clarke v. McAuliffe, 81 Wis. 104 , 51 N. W. 83 .

Respecting clearness and definiteness, the evidence which is required to establish an express trust under the statute is well stated in Dyer’s Appeal, 107 Pa. St. 446, and I cannot do better than quote from that case:

“Do the two letters, taken together, constitute such a writing as will take the case out of the prohibition of the statute ? It must be conceded that they contain an admission of the *569 ■existence of a trust. But wbat trust ? "Wbo are tbe cesiuis que trustent ? . . . One of tbe letters speaks of selling tbe property and dividing tbe proceeds pro rata. But between whom? Just bere is tbe pincb of tbe'appellees’ case. Eor it is in vain tbat we look to tbe letters for an answer to these questions. To obtain it we must go outside tbe letters and supply tbe omissions by oral testimony. Tbe appellees refer witb confidence to tbe partition to sbow. tbat tbe trust is in. favor of tbe beirs of Bobert B. Bay; tbat tbe allotment to Bobert Bay was double in value tbe share of tbe other beirs. But all this appears by oral testimony, and tbe facts which tbe master reports as agreed upon only meet a portion of tbe difficulty. There is nothing in tbe facts admitted to raise and define tbe trust. It is but necessary to read tbe report of tbe learned master to see tbat be was compelled to rely to a considerable extent upon oral testimony to reach bis conclusions. And we can safely say that no decree could be made by a chancellor without such aid. It would be a decree composed of a species of judicial mosaic work, written evidence alternating witb oral • testimony. It needs but a moment’s reflection to see that if we allow this we would seriously impair tbe act of 1856. This we are unwilling to do.”

Ward’s letter is relied upon as tbe strongest evidence going to establish an express trust, but a careful examination of it will show tbat it is not siifficiently definite and certain, even when read in the light of tbe facts and circumstances surrounding its execution, to impeach tbe integrity of tbe deeds. It does not indicate tbe lands in question as tbe subject of tbe trust without tbe aid of parol evidence; it does not show witb fulness and certainty, as required by tbe statute, tbe purpose of tbe supposed trust. Eor wbat purpose convenience of conveyancing as stated does not appear. If tbe deeds were intended to be a trust, it is very singular tbat they should have been made in the form of absolute deeds. In fact tbe evidence tends to show tbat they were intended to be taken just as they were taken — absolute deeds, — and.tbat tbe arrangement between tbe parties respecting tbe relation of tbe parties to tbe property was to be settled by an instrument or *570 instruments entirely independent of the deeds to Ward, so-far at least as the Milwaukee property was concerned. The* Ward letter does not sufficiently indicate with that certainty-required hy the statute who the beneficiaries were. It simply says, “I have made the purchase;” “We take the works;”' “Stock to Bushnell;” “Bonds of the Swedes Iron Co-. to be guaranteed by the mills; ... in proportion of interest in pty.” The letter does not indicate who “we” are, or what mills are meant. The trust must be established by writing-alone. Co ok v. Barr, 44 N. Y. 156 ; Holmes v. Walter, 118 Wis. 409 , 95 N. W. 380 ; Harney v. Burhans, 91 Wis. 348 , 64 N. W. 1031 .

The other link in the chain of plaintiff’s title attacked by-respondents is the deed from Orren W. Potter, sole surviving-executor of the will of Ward, to the Rorth Chicago Rolling Mill Company and Burt and others as trustees, to each an undivided one-half interest. We have referred in the statement of facts to the paragraph in Ward’s will authorizing a sale of the property. The will was probated in Michigan, where AVard lived at the time of his death.' A duly authenticated copy of the will and probate thereof was recorded in the office of the register of deeds of Milwaukee county, Wisconsin. This was sufficient without probating the will in this state,, and was presumptive evidence of the authority of Potter as sole surviving executor to convey the land under the power of' sale contained in the will. Sec. 2295, Stats. (1898). The-power of sale contained in the will was a valid power in trust and authorized the executor to convey the title. Secs. 2102,. 2121, 2123, Stats. (1898); Ford v. Ford, 70 Wis. 19 , 33 N. W. 188 ; Crowley v. Hicks, 72 Wis. 539 , 40 N. W. 151 .

It is further argued by respondents that since the power-was given to three executors one could not execute it. But the statutes both in Wisconsin and Michigan provide that the-sole surviving executor can rightfully execute the power. Sec. 2137, Stats. (1898); 2 Howell’s Ann. Stats. Michigan,. § 5628.

*571 The fact that ejectment was brought for the whole property does not prevent judgment for a part. Sec. 3074, Stats.. (1898), provides that no person can recover in an action of ejectment unless he has, at the time of commencing the action, a subsisting interest in the premises and a right to recover the same or to recover the possession thereof or of some share, interest, or portion thereof; and sec. 3077 provides that the complaint shall set forth that the'plaintiff has “an estate or interest in the premises claimed, I . . and shall particularly state the nature and extent of such estate or interest.” Other provisions of the statutes in ejectment clearly show that any share or interest may be recovered although suit be brought for the whole. Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94 , 36 N. W. 837 ; Gunderson v. Cook, 33 Wis. 551 ; Tobey v. Secor, 60 Wis. 310 , 19 N. W. 99 ; McGlone v. Prosser, 21 Wis. 273 .

The evidence shows that the plaintiff had at least an undivided interest in the property in dispute and was entitled to possession against all persons except its cotenant. Hardy v. Johnson, 1 Wall. 371 ; Newman v. Virginia, T. & C. S. & I. Co. 80 Fed. 228 ; Dorlan v. Westervitch, 140 Ala. 283 , 37 South. 382 ; Newman v. Bank of California, 80 Cal. 368 , 22 Pac. 261 ; Robinson v. Roberts, 31 Conn. 145 ; Sowers v. Peterson, 59 Tex. 216 ; Hutchinson v. Chase, 39 Me. 508 ; Sherin v. Larson, 28 Minn. 523 , 11 N. W. 70 ; Horner v. Ellis, 75 Kan. 675 , 90 Pac. 275 ; Gilbert v. Auster, 135 Wis. 581 , 116 N. W. 177 ; Kent v. Agard, 24 Wis. 378 .

The rule in this state, before changed by statute, doubtless was that in an action of ejectment, upon claim of the whole title, plaintiff could not recover an undivided part. Allie v. Schmitz, 17 Wis. 169 ; Riehl v. Bingenheimer, 28 Wis. 84 . But the statute was altered by ch. 117, Laws of 1871, which change is embraced in sec. 3077, Stats. (1898), and under such change plaintiff, although claiming the whole, may recover an undivided interest.

Other questions discussed by appellant do not require treat *572 ment. It follows that, since no express trust was shown, the title passed to Ward and his executors. Whether an implied, resulting, or constructive trust was shown is not involved in the case and we do not decide that question.

By the Court. — The judgment of the court helow is reversed, and the cause remanded for a new trial.

A motion for a rehearing was denied October 3, 191T.