Franklin v. Colley ( 1872 )

The opinion of the court was delivered by

Valentine, J.:

The facts in this case are in brief as follows: Ann Franklin and Lou Colley, both being females, and unmarried at that time, jointly purchased two lots in the city of Wyandotte, each furnishing an equal portion of the consideration; but by a parol agreement, and without any fraudulent intent, they had the deed made to Ann Franklin alone so that she might hold the property until Lou Colley became of age. They took possession of the property jointly, built a house thereon, and both resided in the house until Ann Franklin dispossessed Lou Colley, when the latter commenced this action for the purpose of having Ann Franklin declared to be a trustee holding an undivided-half of the two lots in trust, for said Lou Colley, and to have judgment requiring the said Ann to execute a deed for the said undivided-half of said lots to her the said Lou. Stephen Franklin is now and was at the commencement of the suit the husband of said Ann; The trial in the court below was before the court without a jury. The findings and judgment were for Lou Colley, and the Franklins now bring the case to this court for review.

The plaintiffs in error claim that this action cannot be maintained because, “First, The plaintiff Colley was not in possession, either by herself or tenant, of the real estate, and had not been for a long time previous to bringing suit to-determine the adverse interests of Ann and Stephen Franklin. Second, She claimed upon a parol contract to create an express trust.” And the plaintiffs in error also claim that “the court erred in permitting testimony to' be introduced of a parol agreement.” This is not a mere action to quiet title or possession, and it is not therefore necessary that the plaintiff below, Lou Colley, should have been in possession of the property in order to maintain the action. And we suppose that there can be no question under the facts of this case but that Lou Colley is entitled to the undivided-half of said lots; that Ann Franklin is merely a trustee of hers for the same;, and that she can maintain this action unless the rules of equity have in this respect beén changed by our statutes.. We think the rules of equity have not been changed by statute so far as they affect this particular case. It has-already been decided in this court that “ While § 8 of the act concerning conveyances, (Gen. .Stat., 186,) §§ 5 and 6 of the act relating to frauds and peijuries, (Gen. Stat., 505,) and § 1 of the act concerning trusts and powers, (Gen. Stat., 1096,) make void every parol agreement which attempts to create an estate in lands, yet said sections do not make void an estate which results from, or which is created by, operation of law.” Moore v. Wade, 8 Kas., 380, 387. (The sections of the Compiled Laws of 1862 corresponding to the foregoing are as-follows: page 354, §7; page 569, §§4 and 5; page 897, §1.) Mere words can no longer under our statutes create a trust iunless such words be in writing. But so far as the foregoing .statutes are concerned trusts may still be created by operation -of law, (not a word being in writing,) as freely as ever. None .of the foregoing statutes, are intended to operate as a limitation, restriction, or prohibition upon the creation of what are known as resulting trusts, implied trusts, or constructive trusts. Such statutes are simply intended (so far as they •apply to trusts) as a limitation or restriction upon the creation .of express trusts. Of course a parol agreement of itself .cannot under our statutes create a trust; but it often-happens when a trust is created by operation of law that there is also a parol agreement attempting to create just sucli a trust. Now the law does not create the trust because of such parol •agreement, but it creates the trust because of other facts in addition to or aside from such parol agreement. The parol agreement of course does not retard, impede, or hinder in the .creation of such trusts; but if it affects the trust at all it assists in its creation. A resulting trust may often be created in accordance with a parol agreement, but such a trust could probably never be created against the agreement, parol or -otherwise, of the parties. Sec. 6 of the act concerning trusts and powers, (Gen. Stat., 1097; Comp. Laws, 897,) is a restriction or limitation upon the creation of resulting trusts, and ,of resulting trusts only. And if it were not for the latter part of § 8 of the same act the trust in the case at bar would be absolutely prohibited. But by the latter part of said § 8, this kind of trust is still permitted and authorized. So much •of the act concerning trusts and powers as will throw light .upon the question now under consideration is as follows:

“Sec. 1. No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”

“Sec. 6. When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by .another, no use or trust shall result in favor of the latter; but the title shall rest in the former, subject to the provisions of the next two sections.”

“Sec. 8. The provisions of the section next before the last shall not extend to cases, * * * when it shall be made

to appear 'that by agreement, and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land, or some interest therein, in trust for the party paying the purchase-money, or some part thereof.” (Gen. Stat., 1096,1097; Comp. Laws, 897, 8980

In the present ease there was no fraudulent intent when the lots were purchased and the deed made, and there was no fraudulent intent on the part of Lou Colley at any time. Therefore we think the latter part of said § 8 applies to this case. But it is claimed on the part of the plaintiffs in error that the word “agreement,” used in the latter part of said §8, means an agreement in writing, and therefore that this section does not apply to this case. This claim is made simply upon the ground that said § 1 requires that all agreements creating express trusts shall be in writing, and plaintiffs in error contend that this is an express trust, and void because not in writing. It is not an express trust; it is an implied trust — a trust implied by law from the acts, conduct, and words of the parties. Section 1 above quoted, while requiring all express trusts relating to land to be in writing to be valid as “express trusts,” distinctly recognizes the doctrine that such trusts “as may arise by implication of law” need not be in writing. Section 8 above quoted applies exclusively to implied or resulting trusts. And as § 8 does not require that the agreement shall be in writing it is very clear that there is no necessity that it should be in writing. The judgment of the court below must be affirmed.

All the Justices concurring.