Quinn v. Reilly

LENNON, J.

This action was commenced by William Joseph Quinn against his sister, Nellie E. Reilly (her husband being joined), to have Nellie E. Reilly declared a trustee holding certain realty and improvements for the benefit of the estate of their father, Patrick P. Quinn.

It appears that in 1921 Patrick P. Quinn purchased certain property, the deed running to himself and his daughter, Nellie E. Reilly.

The lower court sustained a demurrer, without leave to amend, to appellant’s amended complaint, and the appeal is from the resulting judgment in respondent’s favor.

The allegation to which the demurrer was sustained reads as follows: “Plaintiff is informed and believes and therefore alleges, that at the special instance and request of said

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Patrick P. Quinn said deed was made and executed to said Patrick P. Quinn, and said Nellie E. Reilly as grantees therein, and/or having said deed so made and executed said Patrick P. Quinn intended to convey and did have conveyed to said Nellie E. Reilly, the said interest and title in and to said property, thereby conveyed to said Nellie E. Reilly, in trust for and to the use and benefit of said Patrick P. Quinn and his said estate and not otherwise, and that said deed was so made and executed not with any intent or purpose of conveying, nor did it convey, to said Nellie E. Reilly such interest in or title to said property or any part thereof, as a gift, advancement or bounty from said Patrick P. Quinn or otherwise, than in trust as herein alleged, and at all times since the making of said deed, Nellie E. Reilly has held such interest and title in said property in trust as alleged herein and as trustee for said Patrick P. Quinn and his said estate, and not otherwise.”

The contention in support of the appeal is twofold: It is urged that under section 853 of the Civil Code, a resulting trust arose in favor of Patrick P. Quinn, or his estate, out of the 1921 transaction, and that the provisions of section 853 are without exception in their scope. It is also urged that if there is an exception to the provisions of section 853 — as in the case where the transaction is between husband and wife or parent and child — this exception operates to raise a presumption that is rebuttable and not conclusive.