This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In Nebraska an oral trust in land appears to be regarded as perfected in case the cestui que trust is allowed by the trustee to take possession of the land, on the theory that this involves "part performance" of the trust. Ober-lender v. Butcher, 67 Neb. 410, 93 N. W. 764: Harman v. Fisher, 90 Neb. 688, 134 N. W. 246. And see Grav v. Beard, 66 Ore. 59, 133 Pac. 791.
58. Hutchins v. Lee, 1 Atl. 447; In re Marlborough (1894) 2 Ch. 133.
Real Property. [ Sec. 106 the sale of land, the sale having taken place before the declaration or acknowledgment of the trust.59 The statute would seem to apply in the ease of an oral trust to hold land in trust and, upon a sale by the trustee, to pay over the proceeds to a person or persons named, so as to preclude any claim on their part to such proceeds, and there are cases to that effect.60 It has, however, occasionally been decided that, after a sale of the land has been effected, the intended beneficiary may assert a claim to the proceeds of sale, even in the absence of any declaration or acknowledgment of trust subsequent to the sale.61 Such decisions appear to involve the assumption that there may be an oral declaration of trust of a fund to be obtained in the future by a sale of land, and that in the case suggested there are two distinct declarations of trust, one as to the land and the other as to the possible future proceeds thereof.
- Sufficiency of writing. The terms of the trust must appear from the writing,62 but they need not all
59. Thomas v. Merry, 113 Ind. 83, 15 N. E. 244; Calder v. Moran. 49 Mich. 14. 12 N. W. 892; Watson v. Payne, 143 Mo. App. 721, 128 S W. 238; Cooper v. Thomason, 30 Ore. 161, 45 Pac. 296; In re Simonds, 201 Pa. 413. 50 Atl. 1005.
60. Chesser v. Motes, 180 Ala. 563, 61 So. 267; McGinness v. Barton, 71 Iowa. 644. 33 X. W. 15; Grantham v. Connor. 97 Kan. 150, 154 Pac. 246: Rapley v. MeKin-ney's Estate. 143 Mich. 508, 107 X. W. 101; Randall v. Constans, 33 Minn. 329, 23 X. W. 530; Peacock v. Nelson, 50 Mo. 256; Comeron v. Nelson, 57 Neb. 381, 77 X. W. 771: Marvel v. Marvel. 70 Neb. 49S. 113 Am. St. Rep. 792, 97 X. W. 640: Johnson v. McKenzie, 80 Ore. 160, 154 Pac. 885.
61. Thomas v. Merry, 113 Ind.
83. 15 X. E. 244; Talbott v. Barber, 11 Ind. App. 1. 38 X. E. 4S7; Chace v. Gardner, 22S Mass. 533, 117 X. E 841; Rob! ins v. Robbins, 89 X. Y. 258; Bork v. Martin. 132 X. Y. 280, 30 X. E. 280, 2S Am. St. Rep. Logan v. Brown. 20 Okla. 334, 95 Pac 441; Kollock v. Bennett, 53 Ore. 395. 100 Pac. 940, 133 Am. St. Rep. 840
62. Russell v. Switzer, 63 Ga. 711. 123: Kellogg v. Peddicord, 181 111. 22. 54 X. E. 623; Gaylord v. City of Lafayette. 115 Ind. 423, 429, 17 X. E. 899; Renz v. Stoll, 94 Mien. 377. 34 Am. St. Rep. 35S. 54 X. W. 276; Tatge v. Tatge. 34 Minn. 272, 25 X. W. 596, 26 X. W. 121; New-kirk v. Place, 47 N. J. Eq. 477. 21 Atl. 124; Steere v. Steere. 5 Johns. Ch. 1. 19 Am. Dec 256; Hutchins v. Van Vechten, 140 X. Y. 115, 35 N.
The requirement of the statute that the writing be signed does not involve any requirement that it be subscribed.64 But in a number of slates the statute expressly requires it to he subscribed.65
If the person sought to he charged as trustee asserts the statute, the oral trust cannot be enforced although, in the same pleading, he acknowledges the existence of the trust.66 But if in his answer he acknowledges the existence of the trust without asserting the statute, the answer constitutes sufficient evidence of the trust to satisfy the statute.67
- (d) Consideration unnecessary. A declaration of trust needs no consideration to support it.68 As
E. 446; Taft v. Dimond, 16 R. I. 584, 18 Atl. 183; McCandless v. Warner, 26 W. Va. 754, 780.
63. Loring v. Palmer, 118 U. S. 321, 30 L. Ed. 211; Wiggs v. Winn. 127 Ala. 621, 29 So. 96; McCreary v. Gewinnar 103 Ga. 528, 29 S. E. 960; Randell v. Moore, 153 Ind. 393, 53 L. R. A. 753, 53 N. E. 767; Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512; McClellan v. McClellan, 65 Me. 500; Hall v. Farmers,' etc., Bank, 145 Mo. 418, 46 S. W. 1000.
64. Kronheim v. Johnson, 7 Ch. D. 60; McVay v. McVay, 43 N. J. Eq. 47, 10 Atl. 178.
65. See Ames, Cas. Trusts, 179.
66. A 2 Story, Eq. Jur. 757; Davis v. Stambaugh, 163 111. 557.. 45 N. E. 170; Thomas v. Churchill, 48 Neb. 266, 67 N. W. 182; Whiting v. Gould, 2 Wis. 552.
67. Garnsey v. Gothard, 90 Cal. 603, 27 Pac. 516; McLaurie v. Parker, 53 111. 340; McCubbin v.
Powell, 7 Gill & J. 157; McVay v. McVay, 43 N. J. Eq. 47, 10 Atl. 178; Preston v. Preston, 202 Pa. 515; Campbell v. O'Neill, 69 W. Va. 459, 72 S. E. 732.
68. 1 Perry, Trusts, Sec.Sec. 96, 98; 1 Ames, Cas. Trusts, 125; Ellison v. Ellison, 6 Ves. Jr. 656,1 White & T. Lead. Cas. Eq. 382, and notes; Richard v. Delbridge, L. R. 18 Eq. 11; Padfield v. Padfield, 68 111. 210, 72 111. 322; Stone v. Hackett, 12 Gray (Mass.) 227; Lane v. Ewing, 31 Mo. 75, 77 Am. Dec. 632; Dennison v. Goehring, 7 Pa. St. 175, 47 Am. Dec. 505.
The courts occasionally speak as if a "meritorious" consideration, such as family affection, were necessary to support a trust, in the absence of any pecuniary consideration. See Nichols v. Emery, 109 Cal. 323, 50 Am. St. Rev. 43, 41 Pac. 1089; Gaylord v. City of Lafayette, 115 Ind. 423, 17
[ Sec. 106 one may create a legal interest in another without the payment of any consideration, so he may create an equitable interest in another without such payment, and it is immaterial in this regard whether he makes himself or makes another the trustee. As a matter of fact, in the majority of cases, a declaration of trust is not accompanied by the payment of a consideration on behalf of the cestui que trust, the intention being to make a gift to him of the beneficial interest.
Although the courts have frequently recognized the validity of a voluntary declaration of trust, that is, a declaration not based on a consideration, by which the declarant, the owner of the property, becomes trustee for another,69 the actual decisions ordinarily involve chattels personal merely, and even as regards this class of property there has been some question as to the policy of recognizing such voluntary declarations of trust, in as much as, by reason of such recognition, one is enabled to make a gift of the beneficial interest without any delivery of possession, such as is required in the case of a gift of the legal title.70 As regards such a voluntary declaration of trust in the case of land, the recognition of its validity appears to involve a departure from the rule which formerly obtained,71 and to be objectionable in so far as it enables the legal owner to make a conveyance of the equitable interest by an instrument different in character from that required for the purpose of conveying the legal favor of the person intended to be benefited.76