Second Judicial Dist. Court of Nevada in State v. Clausen (Wash.) 324 329 271 State, Ewing v. (Okl. Cr. App.). 274 Sturtevant, Cuddy v. (Wash.). 909 State, French v. (Okl. Cr. App.). State, Holden v. (Ókl. Cr. App.). State v. Huffaker (Mont.).. State, James v. (Okl. Cr. App.). State, Johnson v. (Okl. Cr. App.). 707 Sugar Loaf Orange Growers' Ass'n 982 Skewes (Cal. App.)... V. .1076 251 Sullivan, Smith v. (Mont.). 288 304 Sumner v. Mohn (Cal.App.) 368 .1118 .1119 Sunset Lumber Co. v. J. I. Metrovich Bldg. Co. (Cal. App.)..... 208 Superior Court of California in and for 202 276 Superior Court of Marin County, Seaman 268 v. (Cal.). 441 .1118 Supple, McDonald v. (Or.). 315 State, Patterson v. (Okl. Cr. App.). State, Pollykoff v. (Okl. Cr. App.). State, Pruitt v. (Okl. Cr. App.).. 777 Suttle, State v. (Wash.). .1117 Swan v. Duncan (Okl.) 319 Swasey, Chipman v. (Cal.). 271 Swasey, Schroeder v. (Cal.). 420 .1018 678 17 17 894 State V. Public Service Commission (Wash.) .1012 State v. Public Service Commission of Ne Teed v. Brotherhood of American Yeomen (Wash.) .1005 Tennant v. Cline (Cal. App.) .1005 321 Terkanian, Palvutzian v. (Cal. App.). 710 Terrien, State v. (Wash.). 503 .1017 State v. Roberts (Utah). 351 Thomas, In re (Utah). 952 State v. Seattle (Wash.). 906 Thomas v. State (Okl. Cr. App.) 711 State v. Sheehan (Idaho). 71 Thompson, Cohn v. (Cal. App.). 381 State, Sherwood v. (Okl. Cr. App.) 270 Thompson v. Modern School of Business State, Smart v. (Okl. Cr. App.).. 269 and Correspondence (Cal.) 451 [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] THE PACIFIC REPORTER VOLUME 190 (106 Kan. 762) SILVERS v. HOWARD et al. (No. 22616.) (Supreme Court of Kansas.. May 8, 1920. Rehearing Denied June 15, 1920.) (Syllabus by the Court.) 1. Trusts 17, 18(5)-Parol agreement by mother to reconvey to son held insufficient to create trust under statute. A mother and son owned undivided interests in a tract of land. The son conveyed to his mother, to enable her to mortgage the land as security for borrowed money, by a deed absolute in terms, but accompanied by an oral agreement on the part of the mother to reconvey. The relations between mother and son were in fact confidential and fiduciary. After the son's death, the mother sold the land as her own, and denied that his widow, his sole heir, had any interest in it. Held, the parol agreement was insufficient to create a trust, because of section 1 of the trust statute, which provides that no trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing (Gen. St. 1915, § 11674). 2. Trusts 43(2)—Grantor may not show parol agreement, in absence of fraud, etc., except in cases involving purchase money. In the absence of fraud, accident, or mistake, the grantor in a deed absolute in terms may not show a parol agreement of the grantee to hold the land in trust for the grantor, except in cases involving payment of purchase money by one person and title taken in another, under section 8 of the trust statute (Gen. St. 1915, § 11681). 3. Trusts 96-Mere repudiation of trust under oral agreement does not constitute fraud. Mere repudiation of the trust contemplated by an oral agreement, ineffectual for the purpose because of the trust statute, does not constitute fraud, either actual or constructive. 4. Trusts 102(1)-Breach of confidence may amount to constructive fraud giving rise to a trust by implication. If a fiduciary relation exist between the grantor and grantee in a deed absolute, and the deed be induced by the relation for a trust purpose, breach of the confidence reposed may amount to constructive fraud, from which a trust may arise by implication of law. 5. Trusts 109, 110-Oral agreement between fiduciaries insufficient, standing alone, to raise implication of trust. If such a conveyance be accompanied by an oral trust agreement, the agreement may be considered as one of the circumstances of the case. It may aid implication of a trust, but it is not sufficient, standing alone, to raise the implication. 6. Trusts 110-Evidence held to sustain trust arising by implication on conveyance by a son to mother. Findings of fact concerning the subject of paragraph 1 of this syllabus considered, and held sufficient to sustain a trust arising by implication of law. 7. Findings construed. Findings of fact considered, and held to show the action was not barred by the statute of limitations. Appeal from District Court, Shawnee County. Suit by Fannie L. Silvers against E. J. Howard and others. Decree for plaintiff, and defendant Ellen Silvers appeals. Affirmed. J. J. Schenck and A. E. Crane, both of Topeka, for appellant. J. B. Larimer and Waters & Waters, all of Topeka, for appellee. BURCH, J. The action was one to enforce a trust relating to land. The plaintiff prevailed, and the principal defendant, Ellen Silvers, appeals. The story of the case is told by the findings of fact, which follow: "(1) On the 25th day of March, 1909, Emanuel Silvers departed this life, intestate, being at the time of his death the owner in fee simple of the east one-half of the southeast quarter and all that part of the east one-half of the northeast quarter lying south of the Union Pacific Railroad right of way, all in section two (2), township eleven (11), range thirteen (13), Shawnee county, Kansas. "(2) That the said Emanuel Silvers left surviving him as his sole and only heirs at law Ellen Silvers, defendant herein, his widow, and four children, Clarence Silvers, Emmett Silvers, Frank Silvers, and Anna Silvers; that at the death of the said Emanuel Silvers the said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Clarence Silvers inherited and became the owner and entitled to the possession of an undivided one-eighth interest in and to all of the real estate hereinbefore described. "(3) At the request of his father and mother, Clarence Silvers remained on the premises above described during the last few years of his father's life, and at the request of his mother he remained upon the premises until the time of his death, which occurred September 19, 1914. "(4) Prior to the death of Emanuel Silvers, his son Frank went to the state of Idaho and engaged in the sheep-raising business, and after the death of Emanuel Silvers, another son, Emmett, also went to the state of Idaho, and there joined his brother Frank in the sheep-raising business. Frank Silvers and Emmett Silvers desired to use some money in their business, and Ellen Silvers, their mother, defendant herein, agreed to make them a loan for the sum desired. I. B. Alter, a banker of Rossville and a friend of the family, was consulted by Ellen Silvers in regard to loaning her the sum she desired to furnish her sons in Idaho. Said Alter informed Ellen Silvers that a lower rate of interest could be procured on a real estate loan, and suggested to her and to Clarence Silvers that all of the children join in a deed to their mother and place the title in her, so that she could execute a mortgage on the land in question, and that when the mortgage was paid off the mother could then reconvey to her children their respective interests. This arrangement was adopted, and Clarence Silvers and the other children executed deeds to Ellen Silvers, their mother, for the land in controversy. On October 12, 1909, Ellen Silvers thereupon placed a mortgage upon said land, and sent the proceeds to her sons in Idaho. No consideration passed from the said Ellen Silvers to the said Clarence Silvers, at the time of the execution of said deed or at any other time, and said deed was made for the purpose of enabling Ellen Silvers to place a mortgage thereon, as suggested by I. B. Alter, and for no other purpose. "(5) At the time of the execution of said deed the relations between the said Clarence Silvers and Ellen Silvers were confidential and fiduciary. "(6) After the execution of said deed, said Clarence Silvers remained upon said premises, farming and managing the same in all respects the same as before the execution of said deed. In 1912 Clarence Silvers was married to Fannie L. Silvers, the plaintiff herein, and took her to his home on said land, where they lived until the time of his death. While residing on said premises, and after the execution of said deed, Clarence Silvers made extensive and valuable improvements upon said premises, expending therefor in the neighborhood of $4,000, and also paid the taxes annually up to the time of his death. "(7) It does not appear from the evidence that any demand was ever made by Clarence Silvers for a reconveyance of said premises from his mother, nor that his mother ever denied the equitable interest of her son in said premises prior to his death. "(8) Clarence Silvers died on the 19th day of September, 1914, intestate, leaving as his sole and only heir at law the plaintiff herein, Fannie L. Silvers, his widow. day of "(9) That on or about the October, 1917, said Ellen Silvers repudiated the arrangement made at the suggestion of I. B. Alter, as hereinbefore found, and sold said premises to L. F. Page for the sum of $19,000, and the said Ellen Silvers thereupon immediately divided the proceeds of said sale between herself and her surviving children in the shares to which they would have been entitled as heirs of Emanuel Silvers. "(10) The premises in controversy were of the reasonable value of $19,000 at the time of the sale in October, 1917. "(11) Clarence Silvers never parted with the equitable title to his undivided one-eighth interest in the premises in controversy, and the deed from him to his mother was for the purpose of enabling her to place a mortgage on said premises and to loan the proceeds from said mortgage to Frank and Emmett Silvers, and for no other purpose. "(12) During all the time that Clarence Silvers was farming the land in controversy, after the death of his father, he received all the income therefrom, and made no accounting to any one therefor. "(13) The defendant Ellen Silvers did not procure the deed from Clarence Silvers, heretofore found, by means of any fraud practiced upon said Clarence Silvers, at or before the execution of said deed, as claimed in the amended petition. "(14) In the fall of 1914, after the death of Clarence Silvers, plaintiff was duly notified by Emmett Silvers that she had no right, title, or interest in or to said real estate, and plaintiff nade no claim to an interest in said real estate other than for her personal money expended in building a silo, which claim was allowed, and she was permitted to remove and sell the same. "(15) This suit was not brought by the plaintiff until July 22, 1918, more than three years after plaintiff was notified that she had uo right, title, or interest in the aforesaid real estate. "(16) Immediately after the death of Clarence Silvers, Emmett Silvers, acting as the agent of Ellen Silvers, took charge of the land in controversy and rented the same, and excluded the plaintiff, Fannie Silvers, from the possession thereof." The defendant requested 15 findings of fact, all of which were adopted in substance by the court, excepting these: "(6) That on the 12th day of October, 1909, Clarence Silvers, by a quitclaim deed, duly conveyed all his right, title, and interest in and to the defendant Ellen Silvers, upon the consideration of ten dollars ($10) expressed in said deed. "(7) That at the time of the execution of said deed there was no contract between Ellen Silvers and Clarence Silvers that she was to reconvey the property to him at any time thereafter." "(14) That Ellen Silvers, at the time of making the deed to the defendant L. F. Page, just prior to bringing this action, was the owner of all of the property described in finding No. 2, and entitled to all of the proceeds thereof." |