Brooks v. Union Trust & Realty Co.

SMITH, C.

This is a suit to enforce an alleged trust (resulting and constructive) in land conveyed to defendant’s grantors by plaintiffs’ alleged trustee. The findings and judgment were for the defendant; and the plaintiffs’ appeal from an order denying their motion for a new trial. Both parties—with an exception that will be noted—rely on the same deraignment of title, which is as follows:—

1. Judgment in favor of plaintiff Burkhart against Teresa Luhring, of date September 19, 1891, for the sum of $85.85— afterwards assigned to plaintiff Brooks; who was then the wife of Burkhart, but afterwards divorced.

2.

Sheriff’s sale under execution on the judgment for the sum of $135.75, and certificate of sale to plaintiff Brooks, oi date July, 1895; at which time, it is alleged in the complaint and not denied, she was still the wife of Burkhart. On this point there seems to be some confusion. The finding of the court is to the contrary of the allegation; and in the respondent’s brief it is said that the parties had been divorced nearly two years prior to the sale. But we are cited to no evidence in support of this assertion, and have not been able to find any. The point is material only to the matter in evidence.

3. Assignment of certificate of sale, for recited consideration of $135.75, and subsequent sheriff’s deed, January 22, 1896, to Daniel Burkhart and Leonard Brooks; sons, the former, of plaintiff Burkhart, the latter, of plaintiff Brooks.

4. Conveyance by Leonard Brooks to Daniel Burkhart, and allotment of the land in question to the latter, by judgment in a partition suit, in the year 1899.

5. Deed of Daniel Burkhart, during his last illness, to Sexton & Grider, of date January 8, 1901.

6. Deed from Sexton & Grider to defendant, of date January 9, 1901.

In addition to the above, it is alleged in the second count of the complaint that during the last illness of Daniel Burkhart, and before his deed to Sexton & Grider, a deed, in execution of the trust, was made and delivered by him to his father, and brother, John Burkhart. But there will be no occasion to consider this aspect of the case.

It is alleged by the plaintiff in effect: That the plaintiff Mrs. Brooks, under agreement to that effect, took the certifi