Strong and others vs. Gordon and others. certain parcels of real estate upon the shores of Lake Koshkonong, in Jefferson county, amounting in all to about 262 acres, and took the legal title thereto in his own name, and placed the deeds upon record; but that, in truth and in fact, he purchased such lands for the use and the benefit of the defendants Peck, who furnished and paid the purchase price thereof, and that Gordon had no beneficial interest in said lands, but held the legal title thereof for the use and benefit of the defendants Peck, who paid the entire purchase price of said lands, amounting, in all, to about the sum of $12,000. (3) That from 1882 to 1890 the defendants Peck also furnished and paid to the defendant Gordon about the sum of $20,000, in addition to said $12,000, a large portion of which was used by the defendant Gordon for improvements upon said lands, and that Gordon never repaid to said Pecks any part of said advances. (4) That the plaintiffs had no knowledge of the interest that the Pecks had in said lands when they extended credit to Gordon, but that they knew at that time that the legal title to said lands was in said Gordon, and believed him pecuniarily responsible for the debts he contracted. (5) That said Gordon made no representations to said plaintiffs in respect to the ownership of said lands, nor did the plaintiffs rely upon his apparent ownership of said lands in extending him credit. (6) That the defendants Peck did not know that Gordon was contracting debts or incurring obligations to the plaintiffs, or either of them, or to other persons, and that they never represented or acted so as to lead any one to believe that Gordon owned said lands, but, on the contrary, claimed the lands as their own. (7) That in all dealings with reference to said lands the defendants Peck acted in good faith, and from legal and honest motives, and that they did not permit the title to be taken by Gordon for any wrongful or dishonest purpose, or with intent to defraud the plaintiffs or any other persons. (S) That upon the purchase of said various parcels of land Strong and others vs. Gordon and others. by Gordon the said Gordon made, executed, and delivered various declarations of trust, covering said lands, declaring, in effect, that he held the title thereto for the benefit of the defendants Peck, but that none of said declarations of trust were recorded in the office of the register of deeds, excepting one, which was recorded on the 24th day of July, 1890, but was not witnessed or acknowledged so as to entitle it to be recorded. (9) That on the Sth day of September, 1890, the said Gordon executed and delivered quitclaim deeds to all of said lands to the defendants Peck, which deeds were recorded in the proper office on the 10th day of September, 1890. (10) That in taking the said quitclaim deeds the said defendants Peck acted in good faith, and that said deeds were made merely for the purpose of placing the legal title in the persons who actually owned the said lands and had paid the consideration therefor, and without intent to defraud any persons, and that said deeds were made and delivered upon a valuable and sufficient consideration. (11) That the plaintiffs commenced attachment actions against the defendant Gordon in July, 1890, but did not cause any real estate described in the complaint herein to be attached. (12) That this action was not commenced until the 5th day of December, 1894, and that more than four years had elapsed after the return of the last execution before the commencement of this action. (13) That the defendant Gordon became insolvent in the spring of 1890, and left the state, and has never returned. As a conclusion of law the court found that the plaintiffs had no lien or claim against the lands named in the complaint. From a judgment dismissing the complaint the plaintiffs appeal. L. B. Caswell, for the appellants, contended, inter alia, that the Pecks were estopped from asserting their interests in the land as prior to the interests of the plaintiff. Hopkins v. Joyce, 78 Wis. 443; Besson v. Eveland, 26 N. J. Eq. 468,. Strong and others vs. Gordon and others. 472; Hews v. Kenney, 43 Neb. 815; Simon v. Openheimer, 20 Fed. Rep. 553; Rumsey v. Town, id. 558; Crook v. Stuart, 2 McCrary, 13; Argall v. Seymour, 4 id. 55; Hirsch v. Norton, 115 Ind. 341; Trenton Banking Co. v. Duncan, 86 N. Y. 222; Pierce v. Hower, 142 Ind. 626; Standard Paper Co. v. Guenther, 67 Wis. 101; Sanger v. Guenther, 73 id. 354; Crippen v. Fletcher, 56 Mich. 389; Hildreth v. Sands, 2 Johns. Ch. 35; Blennerhassett v. Sherman, 105 U. S. 118; Bank of U. S. v. Housman, 6 Paige, 526. For the respondents Peck there was a brief by Fethers, Jeffris, Fifield & Mouat and Aldrich, Reed, Foster & Allen, and oral argument by M. G. Jeffris. WINSLOW, J. It is vigorously contended that some of the vital findings of fact made by the court are not justified by the evidence, but examination of the case convinces us that the contention cannot prevail. The facts, in brief, are that Gordon bought 260 acres of land with the money of the defendants Peck, and took title in his own name with the consent of the Pecks. As he purchased the various parcels of land, Gordon gave to the Pecks written declarations, stating, in effect, that the Pecks had advanced the money to pay for the land, and owned the same, and that he (Gordon) held the title in trust only for them, and subject to their direction. These declarations were not placed on record, and in fact most of them were not executed so as to be entitled to record. The plaintiffs extended credit to Gordon, knowing that he had title to the lands, but not relying upon his ownership of the lands. Neither Gordon nor the Pecks represented that Gordon owned the lands, nor did the Pecks know that Gordon was contracting debts. Prior to the plaintiffs' judgments, Gordon conveyed the lands to the Pecks, because they had paid the entire consideration therefor, and the acts of the Pecks Strong and others vs. Gordon and others. throughout the entire transaction were in good faith, and withcut intent to defraud the plaintiffs or any other person. Upon these facts the defendants were entitled to judgment under the decisions of this court. Had Gordon represented to the plaintiffs that he owned the lands, and obtained credit thereby, the plaintiffs dealing with him on the faith of his representation and apparent ownership, the Pecks would probably be estopped from asserting any interest in the land until the plaintiffs had been paid. Hopkins v. Joyce, 78 Wis. 443. Such, however, was not the case. Neither Gordon nor the Pecks made any representations as to Gordon's ownership of the lands, nor did the plaintiffs give Gordon credit relying upon his apparent ownership. Before the plaintiffs obtained judgments, Gordon in good faith conveyed the lands to the Pecks, who had paid for them, and were entitled in good conscience to the title. Thus, though the trusts were probably void, being mere passive or dry trusts not authorized by the statute, they were fully executed before the rights of any third persons had intervened, and hence will be protected. Karr v. Washburn, 56 Wis. 303; Begole v. Hazzard, 81 Wis. 274. The plaintiffs invoke the aid of sec. 2090, R. S., which provides as follows: "When an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed absolute as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration." The express trust here referred to must be one of the express trusts authorized by sec. 2081, R. S., as amended by ch. 290, Laws of 1883, as these are the only valid express trusts now existing with reference to real property under our laws. It has been held, also, that the trust referred to in this section must be created by an instrument in writing executed Minnesota Thresher Mfg. Co. vs. Wolfram. as the statute requires. Pavey v. American Ins. Co. 56 Wis. 221. As we have seen, the trusts attempted to be declared by Mr. Gordon in the various declarations were mere passive or dry trusts, and not express trusts; hence the section has no application to the present case. Davis v. Graves, 29 Barb. 480. By the Court.- Judgment affirmed. MINNESOTA THRESHER MANUFACTURING COMPANY, Respondent, vs. WOLFRAM, Appellant. May 24-June 11, 1897. Agency: Transaction outside of contract: Sale: Rescission: Evidence: Court and jury. 1. In an action on a promissory note given to the manufacturer of threshing machines by one of its agents, who had been employed under a contract making him personally liable for all machines sold unless settled for by cash or notes before delivery, in payment for a second-hand machine which he had sold on his own responsibility and which had been returned to him because failing to work as represented, the question whether the transaction amounted to a sale of the machine to the defendant entirely outside the contract of agency, thus enabling him to insist upon an express warranty, is held, upon the evidence, to have been for the jury. 2. Evidence in such case that, after some correspondence in respect to the return of the machine and rescission, the transaction was adjusted by the defendant with plaintiff's general agent, in pursuance of which the tools and extras which had been furnished with the machine were returned and credited to defendant, and plaintiff sent him an invoice of the outfit, by which it was consigned to him for sale on commission and charged to him at the regular agent's price,― rendered the question of rescission also for the jury. APPEAL from a judgment of the circuit court for Outagamie county: CHAS. M. WEBB, Judge. Reversed. VOL. 9631 |