
    Sleeper et al. v. Iselin et al. Tomes, Intervenor, et al. v. Sleeper et al.
    I. Deed of Trust; beneficiary hot named : enforcement op trust. A trust created by a deed which is sufficient in all respects, except that it fails to name the beneficiary, may he enforced by the real beneficiary as against a purchaser from the trustee with notice of the trust, in a case where the name of the real beneficiary is supplied by the testimony of the trustee.
    
      Appeal from O'Brien District Court.
    
    Saturday, December 15.
    IN July, 1880, Jno. H. Iselin and Henry II. Iselin were partners, doing business under the name and style of John H. Iselin & Oo. As such partners they became indebted to the First National Bank of St. Paul and A. ~W. Sleeper & Bro. To secure said indebtedness, John II. Iselin and. wife and Henry Iselin executed to A. "W. Sleeper, trustee, a deed of trust on certain real estate. The plaintiffs are the assignees of the beneficiaries in the deed of trust, and entitled to enforce the lien thereof. This action was brought for that purpose. Henrietta C. Tomes intervened, claiming that she owned a portion of the real estate described in the trust deed, and that as to such portion it should not be enforced. Certain other persons were made parties by the intervenor, and she asked that she be decreed to be the owner of the real estate claimed by her, and for other relief. The issues be-j tween the plaintiffs, defendants and intervenor, by agreement of the parties, were submitted to the court. There was a finding and judgment for intervenor, and the plaintiffs and intervening defendants appeal.
    
      Barrett <£¡ Bullís, for appellants.
    
      Boy Wright, for appellees.
   Seevers, J.

Iii 1875, Jolm H. Iselin became the trustee of intervenor in relation to certain stocks and bonds owned by the latter. In 1879, John II. Iselin suggested to the in-tervenor the propriety of converting the stocks and bonds into money,, and investing the proceeds in certain real estate in Sheldon, Iowa. As an inducement to make such investment, Iselin represented to the intervenor that she would receive a larger annual income therefrom than she obtained from the stocks and bonds. The intervenor adopted the suggestion, and authorized said Iselin to sell the stocks and bonds, and invest the proceeds in real estate, as suggested by him. At that time John H. Iselin was the owner of the property in controversy, and he converted the stocks and bonds into money, and the same was placed to his credit on the books of John H. Iselin & Co., and the same was used by said firm in the parternership business, and, in consideration of said money, John IT. Iselin and wife conveyed the property in controversy to John ÍT. Iselin, trustee, in December, 1879. This conveyance is in the usual form of warrantee deeds, and was duly acknowledged, and filed for record in January, 1880. At the time the deed of trust under which the plaintiffs claim was executed, as we find from a preponderance of the evidence, the trustee and the beneficiaries therein named had express notice of the conveyance to John IT. Iselin as trustee for the intervenor. The appellants insist that the trust attempted to be created by the conveyance to John IT. Iselin, trustee, is an express trust, and that the same cannot be enforced against them as subsequent encumbrancers, because of the existence of a statute which is as follows: “Declarations or creations of trust or powers relating to real estate must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts, resulting from the operation or construction of law.” Oode § 1934. The in-tervenor contends that it makes no difference whether the trust is express or resulting — that, under the circumstances of this case, it may and should be enforced against the appellants.

I. Tbe conveyance to John H. Iselin, trustee, was executed in all respects as are deeds conveying real estate. Tbe property — tbe subject of tbe trust — is sufficiently described, and tbe only objection taken thereto is that tbe beneficiary is not named, and, as this must be supplied by parol, it is contended tliat tbe alleged trust is void, or at least that tbe lien of appellants bas priority thereto. Many authorities have been cited by appellants in support of their position, which. have been examined with tbe care which the importance of tbe case requires. But we do not think they are applicable, because of tbe fact which we now proceed to state:

John II. Iselin admits the trust — that is to say, be testifies as a witness that tbe conveyance was made to himself as trustee, for tbe use and benefit of tbe intervenor, in consideration of money received by him belonging to her. This being so, tbe trust as against him could certainly be enforced, because it is alleged by the intervenor and admitted by tbe party named in tbe conveyance as trustee. Tbe appellants, or those under whom they claim, bad express notice that tbe real estate in controversy bad been conveyed to John II. Ise-lin, trustee for tbe intervenor. It is the established rule that one who purchases from a trustee with notice of a trust tabes tbe property subject thereto. Perry on Trusts, § 217.

"We do not think the appellants have any better right than John II. Iselin; and, as tbe trust can be enforced against him, it can be against them. It is insisted that no trust is pleaded by the intervenor; but tbe facts are fully' stated. It there-fpre becomes a question of law as to which party has the prior right.

Affirmed.  