Barr v. O'Donnell

Belcher, C. C. This action was brought to establish a trust in relation to certain real property in the town of San Rafael. The defendant interposed a general demurrer to the complaint, which was sustained, and the plaintiff declining to amend, judgment was entered that he take nothing by his action.

The material facts stated in the complaint are as follows: In March, 1879, the plaintiff William Barr and the defendant Connell O’Donnell purchased and became equal owners as tenants in common of a described tract of land. In January, 1881, they divided this tract of land, each conveying to the other, by a deed absolute in form, a described portion thereof. The portion described in the deed to Barr contained 31,388 superficial feet, and the portion described in the deed to O'Donnell contained 57,608 superficial feet. It was not intended that this partition should be final, and at the time the deeds were made it was mutually agreed in parol by and between Barr and O’Donnell “that said O’Donnell should hold the said land in trust to transfer to said Barr, when said Barr should thereafter require him to do so, such portion thereof as would make the parts owned by each in severalty of equal value without improvements, and would thereafter effect such partition of the ‘original purchase’ as would be equal.” In August, 1881, Barr demanded that O’Donnell should convey to him “such portion of said lot which he, O’Donnell, bad the legal title to, as would make the interests of each of them of equal value,” but O’Donnell declined to comply with the demand.

The prayer is, that O’Donnell be declared to hold the land conveyed to him by Barr in trust, “and that it be ascertained under the direction of the court what portion of the land deeded to O’Donnell in severalty would be sufficient when conveyed to said Barr to make the shares of O’Donnell and Barr, realized from the ‘ original purchase,’ equal in value,” and for general relief.

[471]The demurrer was properly sustained.

It is clear that the complaint does not state facts showing an express trust in favor of the plaintiff. Such a trust can be created only by an instrument in writing, subscribed by the party creating it. (Civ. Code, sec. 852; Code Civ. Proc., sec. 1971.) If land be conveyed by an absolute deed, no express trust in favor of the grantor can be raised by proof of a parol agreement by the grantee to hold the property in trust or reconvey it. (Burt v. Wilson, 28 Cal. 632; 87 Am. Dec. 142; Gallagher v. Mars, 50 Cal. 23; Fouty v. Fouty, 34 Ind. 433; Movan v. Hays, 1 Johns. Ch. 339.)