Russ v. Mebius

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

The plaintiff conveyed to his father certain real estate in the city .of San Francisco, and the object of this suit is to set aside the convey[355]anee and obtain possession of the properly. The case was tried by a referee, and upon his report a judgment was rendered in favor of the defendants. The plaintiff appeals from this judgment, and contends that the facts found by the referee are sufficient to entitle him to recover. The ground upon which he relies is the want of consideration for the conveyance. It appears that the consideration was a verbal agreement by the father to make a will, and devise to the plaintiff certain property mentioned in the complaint. The father died without having complied with the agreement, and the plaintiff claims that he is entitled to be restored to his original rights. The referee finds that this agreement was the only consideration for the conveyance, but whether this is the consideration expressed in the conveyance itself, does not appear. Assuming that it is, we are unable to see why the case does not fall within the doctrine of resulting trusts. The agreement was void, and the conveyance was executed -without any consideration, express or implied. It is shown that the transaction was not intended as a gift, and as there was no consideration, a trust resulted in favor of the plaintiff by implication of law. Where a conveyance, says Story, is made of land or other property without consideration, expressed or implied, or any distinct use or trust stated, the intent is presumed to be, that it shall be held by the grantee for the benefit of the grantor, as a resulting trust. (2 Story’s Eq. sec. 1197.) “ This,” says the same author, “ is in strict conformity to the rule of the common law, applied to resulting uses, which, indeed, were originally nothing but resulting trusts. Thus, a feoffment, made without consideration, was, at a very early period of the common law, held to be made for the use of the feoffer. * * Be the origin of the doctrine, however, as it may, it is firmly established in equity jurisprudence in matters of trust. And it is not in any manner affected by the provisions of the Statute of Frauds, for that statute contains an express exception of trusts arising by implication, and transferred and extinguished by acts of law.” (Id. 1198.)

Our opinion is, therefore, that the facts set forth in the report of the referee are sufficient to raise the presumption of a trust; and the enforcement of this trust is a right which the plaintiff may demand. The equities relied upon by the defendants, whatever may be their moral merits, are insufficient to constitute a defense. No implication of a trust arises upon a purchase of property by a parent in the name of his child. Prima facie, such a purchase is to be regarded as an advancement, and an implied trust in favor of the person paying the money