Foster v. Friede

delivered the opinion of the court.

As preliminary to the principal question arising in this cause, it may be stated that the point on which much stress is placed in the argument for the appellants, that the sale is invalid and of no effect because the second deed of trust was void, can have no bearing on the decision of the case. The only thing presented for our consideration is whether appellants are entitled to the equitable relief which they demand. To entitle them to such relief, it must be established that a trust was created for their benefit in the sale of the property by O’Fallon to Ann E. Rucker, or in some subsequent transaction in and concerning the same.

Trusts are either express or implied. Express trusts are created whenever the legal estate in property of any description is conveyed to one competent to take as trustee, to be held for the benefit of one capable of taking as cestui qui trust. Implied trusts may be raised upon the supposed intention of the parties, as expressed by their language, conduct, or in the nature of the transaction. (Tif. & Bui. on Trusts and Trustees, 11-20.) The first is created by the act of the parties, the latter by the act and construction of law. The evidence wholly fails to show that O’Fallon conveyed the property to Ann E. Rucker, clothed with a trust for Jane Foster’s children. It clearly appears that the lease had expired; that O’Fallon held the property unencumbered, *44and sold and conveyed it without imposing any trust; and there is no evidence that the purchase money was paid either by the children, or by any one for their use or benefit. Nor is there anything to show that, in any of the transactions which occurred afterwards, anything was done which would raise or imply a trust in their behalf.

It is unnecessary to discuss the question of fraud presented, as the appellants make no case entitling them to the interposition of a court of equity.

Judgment is affirmed.