Kopp v. Gunther

Citations

• 95 Cal. 63
• 30 P. 301
• 1892 Cal. LEXIS 787

Syllabus

<p>Deed oe Trust — Rescission — Revocation oe Will. —A complaint in an action brought to have it decreed that a conveyance of lands by the plaintiff to the defendant created a mere naked legal trust, and to compel the defendant to convey the lands to the plaintiff, alleging that the property was conveyed in trust, and that at the same time the defendant executed a written instrument, which, after reciting that the property was conveyed in trust, contains an acceptance of the trust and an agreement to carry out the same according to a declaration of trust set forth in plaintiff’s will, executed contemporaneously therewith, and which further alleges that the deed was executed solely for the purpose of securing the defendant for small amounts of money to be loaned to the plaintiff by the defendant, and as a part of his last will, and further avers that the plaintiff has revoked his will and the naked trust, if any, created by the conveyance, and has offered to repay the sums advanced by defendant, but which avers neither undue influence, fraud, or any other of the ordinary grounds for avoiding conveyances, states no cause of action.</p> <p>Id. —Voluntary Trust not Revocable — Want of Consideration. — A voluntary deed of trust passing a present interest in fee to the trustee, with full power to control, encumber, and sell the property without reserving a power of revocation, is irrevocable, and a want of consideration therefor is immaterial.</p> <p>Id.—Declaration of Trust in Will — Revocation of Will — Separate Deed of Trust — Reference to Will. —A declaration of trust in a will as to property conveyed to a trustee by an absolute conveyance in trust, which is no part of the will, is not revoked by the revocation of the will, where the property conveyed is expressly excepted from the estate disposed of by the will, and the declaration of trust contained in the will is referred to in the deed of trust for the purpose of showing the nature of the trust.</p> <p>Id. —Mistak