Fleenor v. Hensley , 121 Va. 367 ( 1917 )

Sims, J.,

after making the foregoing statement, deliw ered the opinion of the court.

The question of the validity of express trusts m real estate, created by parol, which was long an open one in this State, is now settled in their favor. Young v. Holland, 117 Va. 433, 84 S. E. 637.

It is true the declaration must be unequivocal and explicit and established by clear and convincing testimony. Taylor v. Delaney, 118 Va. 203, 86 S. E. 831. As appears from the statement of facts above, however, the evidence in the case before us measures up to this rule.

It is urged in behalf of appellant that in order that a trust, resulting or express, may be established, the purchase money must have been paid by the beneficiary of the alleged trust, and 1 Minor on Real Prop., sec. 467-473, is cited to sustain such position. The learned author cited is, in the sections of his work referred to, treating of trusts •created by operation of law or the implied intention of the parties, where there is no express declaration of trust; not of express trusts. 3 Pom. Jur., sec. 987 et seq. The trust in suit before us falls within the latter class.

On principle, it is immaterial from whom the consideration is derived to support an express trust. In this particular an express trust created by parol, cannot differ from such a trust created by writing. The consideration may move from any donor of it for the benefit of a cestui que trust other than the donor. It need not move from the cestui cue trust. and usually does not. “All persons who have the canacitv to hold and dispose of propertv can impress a trust upon it.” 3 Pom. Eq. Jur., sec. 987. “If a trust has been completely declared, the absence of a valuable consideration” (moving from the cestui que trust) “is entirely immaterial.” 3 Pom. Eq. Jur., secs. 996-7. The declaration, indeed, may come from the donor (when otherwise admissible in evidence), as well as from the trustee. An acceptance by the trustee is all that is necessary to bind him. Idem, sec. 1007. A voluntary trust is an equitable gift inter vivos and needs no consideration moving from the cestui que trust to support it. Bath Savings Inst. v. Hathorn., 88 Me. 122, 33 Atl. 836, 32 L. R. A. 377, 61 Am. St. Rep. 382. And “it is not essential to its validity that the beneficiary should have had notice of its creation or have assented to it.” Idem, citing and quoting from Connecticut River Sav. Bk. v. Albee, 64 Vt. 571, 25 Atl. 487, 33 Am. St. Rep. 944.

It is true that equity will not enforce a trust created for an illegal or fraudulent purpose (Pom. Eq. Jur., sec. 987) and it is contended for appellant that the trust in the case before us was created for a fraudulent purpose — namely, to shield from his creditors whatever consideration W. H. Hensley furnished therefor or whatever interest in or benefit from the property he might acquire thereby. The evidence in the cause does point very strongly toward that conclusion.

But this issue is not made by the pleadings in the cause. A court of equity can decree only upon the case made by the pleadings. Mundy v. Vawter, 3 Gratt. (44 Va.) 518; Grigsby v. Weaver, 5 Leigh (32 Va.) 215; Kent’s Adm’r. v. Kent’s Adm’r., 82 Va. 206; Linkous v. Stevens, 116 Va. 898, 905-6, 83 S. E. 417; Murphy’s Hotel Co. v. Herndon’s Adm’r., 120 Va. 505, 91 S. E. 634. This is especially true where fraud is relied on as established by the proof. It must be distinctly alleged in the pleadings, otherwise it cannot be the basis of any decree. Gregory v. Peoples, 80 Va. 355; Welfley v. Shenandoah &c., 83 Va. 768, 3 S. E. 376; University of Va. v. Snyder, 100 Va. 567, 42 S. E. 337; Saunders v. Parrish, 86 Va. 592, 10 S. E. 748; Wheby v. Moir, 102 Va. 875, 47 S. E. 1005. "An answer must aver all the essentials of the defense.” Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713, 5 Am. St. Rep. 285. There is no allegation in the answer of appellant in the case before us of any fraud.

It is further contended for appellant that it is contrary to public policy to employ a party to bid in land at a judicial sale and to thus create a secret trust in favor of the wife and mother of the insolvent debtor whose land was sold, that a court of equity will not lend its aid to this kind of a transaction — citing Horn v. Star Foundry Co., 23 W. Va. 522-n. If the transaction is fraudulent and the fraud is put in issue by pleadings in the cause, this position is sound. In the case last cited, the answer of the defendant alleges that the trust sought to be enforced was a device on the part of the real plaintiff to hinder, delay and defraud his creditors. Thus the pleadings put the alleged fraud in issue. The court applied the maxim “where both parties are equally guilty, the defendant shall prevail."

The defect in the position of appellant in the case before us is, as indicated above, that he did not assail or put the character of the transactions in question In issue by his pleading in the cause.

It is further contended that the court below erred in decreeing that a certain portion of the land in question shall be deeded to Eliza Hensley. That if she were entitled to have an express trust enforced, she is only entitled to an undivided one-half interest in the entire tract. This position is not supported by, and is contrary to, the evidence in the case which establishes the trust. That evidence is, in effect, as noted in the above statement of facts, that appellant accepted the trust for Eliza Hensley and Martha E. Hensley; that the interest of the former in the subject ox the trust at the time was not undivided, but a specific part of the land set apart to her by partition as aforesaid; that this was known to appellant at the time he accepted the trust, as must be inferred from the situation and circumstances surrounding the parties; that such specific portion of land belonging to Eliza Hensley was reduced, by the sale and conveyance aforesaid to Burdine as aforesaid, to the specific parcel of land claimed by her in the bill, so that the latter was entitled to a decree against appellant for a conveyance of such specific parcel of land.

For the foregoing reasons, we find no error in the decree complained of and it will be affirmed.

Affirmed.