Murphey v. Cook

Citations

• 11 S.D. 47
• 75 N.W. 387
• 1898 S.D. LEXIS 70

Syllabus

<p>1. By Comp. Laws, tit. 4, part 2, § 2789, uses and trusts in real property are restricted to such as are specified in that title. Section 2795 provides that no trust in real property is valid unless created (1) by a written instrument signed by the trustee or his agent, (2) by an instrument under which the trustee claims the estate affected, (3) by operation of law; and Section 2798 allows such trusts to be created (1) to sell real property, and apply the proceeds in accordance with the terms of the instrument; (2) to mortgage or release real property for the benefit of annuitants or legatees, or to satisfy a charge thereon; (3) to receive rent and profits, and apply them to the use of a person, subject to the rules of part 2, tit. 2; and (4) to receive and accumulate rents and profits for the purposes and within the limits prescribed by that title. Held, that a deed conveying land to “L., as assignee of P. & B.,” without any purpose declared, where there was evidence that P. & B. never made an assignment, and that L. was never appointed their assignee, was void for want of a grantee; and inoperative under the statutes to create a trust.</p> <p>2. Comp. Laws, § 2795, provides that “no trust in relation to real property shall be valid .unless created or declared (1) by a written instrument subscribed by the trustee [trustor] or his agent,” etc. Held, that the word '‘trustor” in brackets is incorrect, and no part of the, statute.</p> <p>3. Comp. Laws, 2814, defines a power as an authority to do some act in relation to real property, or the creation or revocation of an estate therein, or a chai'ge thereon which the owner * * * might himself perform. Section 2801 provides that when a trust in realty is created for a purpose not enumerated in preceding- sections, such trust vests no title in trustees; hut, if it directs the performance of a lawful act under a power, it is valid as a power in trust. Held, that where an instrument creating an invalid trust did not provi