Hoon v. Hoon

Weavbk, J.—

The petitioner states that her father, Silas Hoon, died, leaving a will, by which his property and estate were to be divided equally between herself and her brother, the defendant. She further states that at the time of his death the said testator had no property or estate except a certain lot in Tipton of the value of $1,000. This property, she says, was purchased with the proceeds of other property formerly owned by her father, and that in taking the conveyance thereof the deed was made to the defendant, Rush Hoon. It is further averred that the deed, though absolute in form, was in fact held by defendant in trust for the benefit of her said father, and was so recognized in his lifetime. By a separate paragraph of the petition it is further alleged that the “ deed is a fraud, and was procured fraudulently, without the knowledge of Silas Hoon, who supposed up to the time of his death that the record title was. in himself.”

The ruling of the trial court is sustainable on several grounds.

1. Statute of frauds: express trust. I. Taking the petition as a whole, it seems to predicate plaintiffs action upon an express trust, pursuant to which Hush Hoon took and held tbe title to the lot in controversy for the nse and benefit of his father. The trust, if one ever existed, is not shown by the deed to the alleged trustee, nor by any other instrument in writing, and, in the absence of such documentary evidence, an express trust cannot be established. Code, section 2918.

2. Advancements: trusts; pleadings. II. There is no allegation of facts which would create a resulting trust in favor of Silas Hoon. It may be admitted that the “ money of Silas Hoon paid for the property,” but that fact does not of itself indicate the existence of such a trust ; and this is especially true when we note that the grantee named in-the deed is the child of the Silas Hoon whose money is alleged to have paid for the lot. As between parent and child, such a conveyance is presumed to be a gift or advancement. McClintock v. Loisseau, 31 W. Va. 865 (2 L. R. A. 816), and cases cited in note thereto; Andrews v. Oxley, 38 Iowa, 578; McGinnis v. Edgell, 39 Iowa, 419.

This presumption is not conclusive, Cotton v. Wood, 25 Iowa, 43, and may be overcome by clear and satisfactory proof; but to permit the introduction of such proof the party asserting the trust must plead something more than the fact that the parent’s money paid for the land while the deed was made to the child. In other words, he must allege the facts on which he relies to overcome the presumption to which the matters just stated give rise.

3. fraud: plead-III. Neither is there any allegation of fraud from which the law will raise a constructive trust. The statement that the deed was “ fraudulently executed, and in fraud of the sa^ Silas Hoon,” and that the “ deed is a fraud, and was proctired fraudulently,” contains no allegation of issuable fact. It is not sufficient to plead fraud in general terms, ‘and, if the pleading does not state the specific acts or facts relied upon as constituting fraud, a demurrer thereto will be sustained. Mills v. Collins, 67 Iowa, 164; Encyclopaedia Pleading and Practice, volume 9, 697. In this respect the plaintiff’s petition is plainly deficient.

The question of the effect of the statute of limitations •is also discussed by counsel, but the conclusion we have reached upon other questions raised by the appeal makes it unnecessary for us to consider it.

The demurrer was correctly sustained, and the judgment 'appealed from is affirmed.