Nordholt v. Nordholt

Vanclief, C. The issues in these two actions were the same, and the actions were consolidated and tried together by the lower court on the same evidence. The court found for respondent on all the issues, and rendered judgment accordingly. The appeals are from the final judgment, and from an order denying motion for new trial.

It appears by the pleadings that the parties are brothers, and that on November 17, 1886, their mother conveyed to the respondent, William, by deed absolute on its face, expressing a nominal consideration of one dollar, an undivided fourth part of certain real property situate in the city and county of Los Angeles; that appellant, John, claimed that this conveyance was in trust for him, and demanded of William a conveyance of the legal title; that on February 10, 1887, William, who was then a minor over the age of eighteen years, conveyed to John by a.bargain and sale deed, expressing a nominal consideration of one dollar, the same undivided fourth of the property; that this conveyance was claimed by appellant, John, to have been made in execution of the alleged trust. The respondent denies the trust, and seeks to avoid his deed of February 10th to John, on the ground that at the time of its execution he was a minor of the age of only eighteen years.

If the respondent took and held the legal title in trust for appellant, he cannot disaffirm or avoid his deed in execution of that trust on the ground of his minority, since the execution of the trust was a duty which a court of equity would have compelled him to perform notwithstanding his infancy. (Elliott v. Horn, 10 Ala. 348; 44 Am. Dec. 488, and cases there cited; Starr v. Wright, 20 [554]Ohio St. 97; Prouty v. Edgar, 6 Iowa, 353; Schouler on Domestic Relations, sec. 416.) Therefore the respondent’s right to disaffirm his conveyance of February 10th depends upon the issue as to whether he held the legal title in trust for the latter. Upon this issue the lower court found for the respondent, and the appellant contends that this finding is not justified by the evidence.

There is nothing in the deed of the mother to respondent to indicate that the conveyance was in trust; nor is the alleged trust evidenced by any written instrument subscribed by the respondent or his agent. If the trust exists, it arises from fraud, and is therefore a constructive trust, not within the statute of frauds, which may be proved by parol; and this is the theory on which the case was tried.