The record-union., 1891-02-06


yersed and the cause remanded for new
trial. FooTE, C,
We concur:
VAN CLIEF, c.,
BELCHER, C.
THE COURT.
For the reasons given in the foregoing
opinion, the Judgment and order are re-
yersed and cause remanded for new
trial.
Titled January 80, 1871
Appeal from Superior Court Los An
geleS County-Wm. =. Wade, Judge
For appellant, Gage 81 Robarts, Brous-
seau, Hatch IL Thomas.
For respondent, Shinn IL Ling, Ander-
son, Fitzgerald d Anderson.
DEPARTMENT TWO.
JOHN II. NoRDHoLT,
Appellant,
WIN. F. NoRDHoLT,
Respondent,
AND No. 1882
WIN. +. NORDHOLT,
Respondent,
VS..
JOHN III. NoRDHoLT,
Appellant.
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.
1t appears by the pleadings that the
parties are brothers, and that on Novem-
Der IL, 1886, their mother conveyed to the
respondent, William, by deed absolute
on its face, expressing nominal con-
sideratiOn 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 de-
manded of William a conveyance of the
legal title. That, on February 10, 1887,
William, who was then minor, over the
age of eighteen years, conveyed
to John by. bargain and sale
deed expressing nominal con-
sideration of one dollar, the same I'M
divided fourth of the property. That,
liant, John, to have been made in execu-
ton 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 Is
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 minor
ity, since the execution of the trust was a
duty which court Of equity would have
compelled him to perform notwithstand-
ing his infancy. Elliott VS.. Horn, a Am.
Dec. 4S8 and cases there cited@S. C. 10
Ala. 34S; Starr VS.. Wright, 20 Ohio st. 81;
Prouty VS.. Edgar, 6 Clarke, Iowa, 353;
Schouler on Dom. Rel. Sec. 4l6). There
fore, the respondents 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 re-
spondent, 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 al
legged trust evidenced by any written
instrument subscribed by the respondent
or his agent. IT the trust exists, it arises
from fraud, and is, therefore, a construct
i've trust, not within the statute of frauds,
which may be proved by parol; and this
is the theory on which the case was tried
The evidence tended to prove that the
mother, at the request of respondent, had
been induced to convey the property in
question to her four children, viz: re-
spondent, appellant and her two daugh-
ters-one undivided fourth to each; that
William (respondent) had requested her
to convey to him Johns fourth in trust
for the latter, on account of Johns dis
sipated habits at that time, to be recon-
veyed to John when he should become
temperate, or when William should be-
come q years of age. That at first the
mother consented to this, and, in the alb
sence of John, William presented to her
the draft of a deed to this effect, and re-
queSted her to execute it; that she refused
to execute the deed as drawn, conveying
Johns fourth to William in trust; but did
then November 8, 1856 execute deed to
William and her two daughters, convey
ing to each one undivided fourth of the
property; that, afterwards (November II,
1856 respondent again requested his
mother to convey to him the other fourth
in trust for John, which she then did with
out other consideration than the parol
understanding with respondent, and his
express promise to her, that he would re-
convey that fourth to John as above
stated; that at the time of making this
promise to hold in trust and to reconvey
to John, respondent did not intend to
perform his promise, but intended to
claim and hold that fourth absolutely for
himself, as he does in these actions; that.
upon Johns claiming and demanding Of
ecuted the deed of February 10, 1887,
but with the secret intention of there
after disafirming it on the ground of his
minority, as he is endeavoring to do in
these actions.
These facts, if proved, constitute such
fraud as wonld justify court of equity
in declaring the respondent a mere
trustee OF the legal title for the benefit of
the appellant. Brison VS.. Brison, IS
Cal. SIS; Adams vs.. Lambard, so Cal. 426:
Sandross VS.. Jones, 35 Cal. 4S1.) And the
evidence, positive and circumstantial. on
the part of the appellant, seems, primG
facid, sufficient to prove them. Indeed,
they seem to be supported by decided
preponderance of evidence properly adj
mitted.
But it was claimed by the respondent
on the trial, without any foundation
therefor in the pleadings, that his deed to
appellant, of February 10, 1887, was exc
cuted under duress per miaas, which his
testimony on the trial had some tendency
to prove. This testimony of the respond
dent as to threats by John was objected
to by counsel for appellant on the ground
that it was irrelevant toi any issue made
by the pleadings. The objection was
overruled by the court and counsel for