Carter v. Blenkiron

SHAW, J.

Action to establish a parol trust in real estate and, in connection therewith, to compel an accounting by the alleged trustee. Judgment went for defendant,' from which plaintiffs appeal.

As appears from the complaint, the action is founded upon the alleged fact that plaintiffs, relying upon defendant’s promises, did, by unconditional grant deed, convey the land to defendant upon his oral agreement- to pay certain indebtedness against the property, secured by a trust deed thereon, after which he would sell .the same and pay to plaintiffs, the purchase money received therefor, less the sum paid in satisfaction of. the deed of trust and reasonable expenses.in effecting such sale; all of which allegations were denied by the answer.

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The. court, in substance, found that, while plaintiffs made the deed to defendant, the making thereof was not accompanied, preceded, or followed by any agreement between plaintiffs and defendant or promises made by defendant, either verbal or written, that plaintiffs or either of them should have or retain any interest in said land or the proceeds of the sale thereof; that said deed was not made or delivered in trust for the benefit of plaintiffs or either of them, and that defendant never agreed that he would protect plaintiffs from the indebtedness so secured by deed of trust upon said land and under which it was to be sold, or that he would sell said property and pay to plaintiffs any sum of money in excess of the mortgage debt, less the reasonable expenses of effecting such sale; that plaintiffs did not believe or rely upon any promises or agreements alleged in the complaint to have been made by defendant when they made the deed to him, and did not convey the property to defendant in trust or for the benefit of plaintiffs or either of them, and that defendant did not deceive or mislead plaintiffs in any matter or thing connected with the making of said deed, and did not practice any fraud or deceit upon plaintiffs to procure the making thereof, but that said deed was voluntarily made by plaintiffs, without consideration, “and because plaintiffs would rather that defendant should own said property than that the same should be entirely lost to them by sale” under said first deed of trust.

As disclosed by the record, these findings are based upon the following facts clearly established by ample evidence: The land in question, prior to the transactions here involved, was subject to four deeds of trust given to secure the payment of promissory notes. The first deed of trust, for some twenty-three thousand dollars, was for the benefit of one Haas; the second and third were for the benefit of these plaintiffs, and the fourth was for the benefit of Ordway. Plaintiffs caused the property to be advertised for sale under the terms of the second and third deeds of trust, which sale took place a few days prior to October 1, 1912, at which time they as purchasers under said deeds of trust acquired title to the lands, subject, however, to the prior deed of trust given to secure payment of the note for twenty-