Milloglav v. Zacharias

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff in an action to have declared a trust in his favor arising out of the facts set forth in his complaint. The appeal is taken upon the judgment-roll without a bill of exceptions, and hence the appellant’s contentions are limited to two; first, that the judgment is not supported by the pleadings; and second, that it is not justified by the' findings of fact and conclusions of law in the case.

The complaint is in two counts, in the first of which it is alleged in substance that the plaintiff, who is the father of the defendant, furnished the purchase price of the lands upon which a .trust is sought to be impressed, and that the title was taken in the name of the defendant in trust for and for the benefit of the plaintiff and with the understanding that she was not to encumber or sell the property; that in violation of said understanding the defendant has already encumbered said property by a deed of trust to secure her promissory note in the sum of two thousand dollars borrowed money, which she has wrongfully appropriated to her own use; and it is further averred that she threatens to convey and dispose of the property to some person or persons unknown to the plaintiff for the purpose of cheating and de-, frauding the plaintiff out of his right, title, and interest in the said property.

It is contended by the appellant that the first count of the plaintiff’s complaint does not state a cause of action for the

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reason, as she urges, that the trust alleged therein to have been created is an express trust; and since the condition of the trust agreement was that the grantee of the title would not sell or encumber the property, this condition, being hostile to the grant, is void. In support of this contention the appellant strongly relies upon the cases of

Prey

v.

Stanley,

110 Cal. 423, [42 Pac. 908], and

Ripperdan

v.

Weldy,