The Montgomery advertiser., 1906-05-11
Head-Notes Qf he Decisions
 Qf Alabama Supreme Court

l-s .f P .t JAcOBY' ct al V. FUNKHOUSER ct al l Bill to Declare Trust and to Termin ate same.--Decided --pril 13, 190bs | sf40 So. Rep. 219). .Ns l. Trusts; Resulting Trusts.-A bill to declare a trust in lands conveyed by deed absolute. which ayers that nc consideration was paid. but that tho conveyance was intended only to ves
 the legal title in the grantee as trusted for one of the grantors; that subse- quent to the deed one of the grantors therein paid taxes on the land; that since grantor's death the grantee in- quired If complainants would continue to pay taxes,and compliments furnished grantee money with which to pay taxes; that subsequent to the deed one of the grantors therein paid taxes on the land; that since grantor's death the grantee Inquired if complainants would con tinue to pay taxes. and complainants furnished grantee money with which to pay taxes; that subsequent to the deed, grantee advanced one of the gran tors money at various times and looked to the property as security for the re- payment of such sums. docs not show trust in lands resulting by implica- tion of law.
 2. Mortgages; Equitable Mortgages; Absolute Conveyances.---A bill to de- clare an express trust in lands convey ey by deed absolute which ayers that no consideration was paid but deed was made. for purpose of investing legal title in grantee, as trustee for com plainant's mother, and that subsequent- iy grantee advanced to one of the gran tors various sums of money and looked to the property as security for repay ment of the sums advanced, but which fails to aver in terms that any indebt- edness existed between the grantor and grantee at the date of the execution of the deed, or any agreement for future advances to be secured " the deed, or that any subsequent advances were made to one of the grantors and the lands conveyed looked to as security for the payment of same, or that such grantor received the advances with any agreement that grantee could look to the land for payment or security, does not allege sufficiently an agree ment for lien, or show a debt on which to rest the theory of an equit- able mortgage; especially when the ev- idence shows that at the time of the execution of the deed, the legal title to the land was vested in one of the grantors as trustee. for the wife of an- other of the grantors.
 3. Same; Conveyance to Secure Debt; Pleadings; Sufficsency.-An allegation that the grantee, after the execution of deed absolute, made advances to one of the grantors and looked to the land conveyed as security for advances so made, Is not the equivalent of an averment that such deed was given to secure the debt.
 2 f. Same; Headings; Proof.-Proof of facts not alleged in the bill are imma- terial, as proof without avermenC Is unavatling to obtain relief in equity. J 5. Equity; Bill; Quitting Averment; Supplying by Prayer.--Averments nee essary to make out a case cannot be supplied by the prayer of bill, where such averments are omitted in the bill proper
 6. Trusts; Express Trusts in Lands; How Created; Necessity for Instru~ meAts in Writing.-A bill to declare an Sxpress trust in lands, which ayers thatAthe lands we~s conveyed by deed absolute. but contains no allegation that any instrument in writing, was executed, signed by the party creating or declaoing the trust, or by his age 1t or attorney lawfully authorized thereto in writing, as Is required by, Section 1041, Code 1896, Is without equity; and the allegation that a letter was writ ten by one of the grantors to the grantee. subsequent to the execution of the deed. declaring in effect that such deed was executed for the purpose of securing any advances made by grantee to such grantor, is insufficient to bring the case within the terms of the stat ute; especially as 1t appears that such grantor had no title or interest in the land, but signed such deed as the hus- band of the other grantor. who was the real owner, for the purpose of join ing therein with his wife.
 q Same; Parol Evidence.-An ex- press trust in lands cannot be estab-