[Download] "Opp v. Boggs" by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: Opp v. Boggs
- Author : Supreme Court of Montana
- Release Date : January 04, 1948
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
1. Trusts ? Created by operation of law. A trust in realty may be created by operation of law and need not be in writing. 2. Trusts ? Held "constructive trustee." Where transferee at the time of transfer was in a confidential relation to transferor and transferor relied upon transferees oral promise to reconvey the land, the transferee was chargeable as "constructive trustee" of the land for the transferor, even though the transferee when he acquired the property intended to perform his promise and was not guilty of fraud in acquiring it and did not take improper advantage of the confidential relation in procuring the transfer. 3. Trusts ? Constructive trust established. The testimony of mother and daughter that the daughter conveyed the realty to the mother to prevent relatives of a third person who paid the consideration for previous conveyance to the daughter from claiming the realty and that the parties understood that the mother would hold the property as a home for the daughter and reconvey upon request established, in the absence of contradictory evidence, a constructive trust in favor of the daughter. 4. Trusts ? Required to be in writing. An express trust in realty must be in writing. 5. Limitation of actions ? When applicable to trusts. The statute of limitations starts to run on an express trust only from the time it is repudiated to the knowledge of the beneficiary, while as to a constructive trust, the statute begins to run at the moment the law creates the trust if the constructive trustee holds the property adversely to the beneficiary, but where there is a relationship of trust and no holding by the trustee adversely, the statute does not run against the beneficiary until refusal to carry out the trust by reconveyance. 6. Trusts ? Beneficiary not barred by laches. Where the beneficiary of a constructive trust has no reason to believe that the constructive trustee is holding the property adversely, the beneficiary will not be barred by laches even though he knows of the circumstances giving rise to the constructive trust. 7. Limitation of actions ? Action must be commenced in ten years after repudiation. An action by the beneficiary to cancel the deed by which the constructive trustee conveyed the realty to husband in violation of trust and to have the beneficiary adjudged the owner of the realty was not barred by the ten year statute of limitations relating to recovery of realty if commenced within ten years after the repudiation of the trust, since possession by constructive trustee was possession of the beneficiary. 8. Limitation of actions ? Application of meaning of "fraud." The two year statute of limitations on actions for fraud or mistake applies only to actions for fraud or mistake within the common acceptance of the term. In the case at bar the circumstances did not constitute fraud under that meaning. 9. Appeal and error ? Cause is remanded. Where the trial court erroneously concluded that no trust arose because - Page 132 the deeds contained no trust provision, the cause should be remanded with directions to pass upon the fact situation as to whether a trust arose as contended by the mothers grantor. 10. Limitation of actions ? Ten year statute applied. An action by a beneficiary to cancel a deed by which the constructive trustee conveyed the realty to her husband in violation of trust and to have the beneficiary adjudged the owner of the realty was governed by the ten year statute of limitations relating to recovery of realty. 11. Pleading ? No election of kind of trust required. Plaintiff, having alleged the facts relied upon to establish a trust in realty in her favor, could rely on whatever trust such facts would justify and could not be required to elect as to the kind of trust she was relying upon.