Kinley v. Kinley

Mr. Justice Hunter

delivered the opinion of the court:

In 1881 plaintiff (appellee), and defendant (appellant), were married. Defendant at the time was a widow with two children: A child was born of the marriage. Defendant after marriage, and between 1881 and 1893, purchased certain lots in an addition to Denver, with funds provided by plaintiff, the deed therefor being taken in her name, under an agreement that the property should be held for the joint benefit of plaintiff and defendant. Defendant' denied that the funds for the purchase were provided by plaintiff. Also denied that the funds for the improvement of the property were provided by the plaintiff.' •

The issues thus presented wei;e found for plaintiff, and as so found we receive them. The case then is reduced to this: Plaintiff, the husband of defendant, furnished funds for the purchase of lots, and for the improvement -of those lots upon the agreement with his wife, the defendant, that the property so acquired should be held for their joint benefit. The1 defendant declined to recognize such agreement, and this action was brought to enforce it.

■ The only evidence to establish this- agreement was parol. The gist of the case, then, is this: Plaintiff established a parol express trust between his wife, the defendant, and himself, and relied upon this for relief. There was no' evidence of fraud in bringing about the placing of the title in defendant’s name, or in securing the funds from the plaintiff to go into the construction of the improvements. The case presents simply an effort to establish an express or direct, trust by parol testimony. This, it has been ruled in this state, cannot be done. We axe unable to distinguish in any particular the case from Davis v. Davis, 18 Colorado 67, and upon its authority the case is reversed.

See, also, Von Trotha v. Bamberger, 15 Colo. 1.

Judgment reversed. Reversed.

Chief Justice Gabbert and Mr. Justice Maxwell concur. _