36-104. Interest in land; how created; devises; trusts by operation of law.

Section 36-103 shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.

Source

Annotations

1. Resulting trusts

2. Constructive trusts

3. Miscellaneous

1. Resulting trusts

Trusts arising by operation of law are excepted from the operation of the statute of frauds. Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637 (1949).

Both resulting and constructive trusts fall within the exception of this section. Watkins v. Waits, 148 Neb. 543, 28 N.W.2d 206 (1947); O'Shea v. O'Shea, 143 Neb. 843, 11 N.W.2d 540 (1943).

A resulting trust is not within the statute of frauds, and parol testimony is admissible to prove the purchase for, and payment of the consideration by, the beneficiary, even though the deed recites the consideration was paid by the grantee. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925).

Payment of purchase price by husband, title taken in wife's name, should be construed as gift, not resulting trust. Van Etten v. Passumpsic Savings Bank, 79 Neb. 632, 113 N.W. 163 (1907).

Where parties make parol contract to purchase land together, and title is taken and payment made by one, the other advancing no money, a resulting trust does not arise. Norton v. Brink, 75 Neb. 575, 110 N.W. 669 (1906).

Evidence to establish resulting trust should be clear, satisfactory and conclusive. Doane v. Dunham, 64 Neb. 135, 89 N.W. 640 (1902); Klamp v. Klamp, 51 Neb. 17, 70 N.W. 525 (1897).

It may be shown by parol that plaintiff paid consideration though deed recites that grantee paid same. Chicago, B. & Q. R. Co. v. First Nat. Bank of Omaha, 58 Neb. 548, 78 N.W. 1064 (1899).

Presumption of resulting trust arising from payment of purchase price does not obtain where the parties are related. Klamp v. Klamp, 51 Neb. 17, 70 N.W. 525 (1897).

Party furnishing share of purchase money, title being taken in name of associates, may enforce parol trust. Leader v. Tierney, 45 Neb. 753, 64 N.W. 226 (1895).

Payment of purchase price raises a presumption of a resulting trust where title is taken in name of stranger, but not where parties are husband and wife. Solomon v. Solomon, 3 Neb. Unof. 540, 92 N.W. 124 (1902).

2. Constructive trusts

Where an agent, in a confidential relationship with his principal, acquires title from the principal in order to sell the land, agent's retention of the land would be unjust enrichment, and a constructive trust is created. Fleury v. Chrisman, 200 Neb. 584, 264 N.W.2d 839 (1978).

Statute of frauds does not apply to a constructive trust. Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786 (1952); Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547 (1949).

Existence of constructive trust arising out of contract for sale of real estate must be proved by clear, satisfactory, and convincing evidence. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).

Where the record title to land is obtained from grantor by fraud of grantee, a constructive trust arises that is excepted from the operation of the statute of frauds. Raasch v. Lund Land Co., 103 Neb. 157, 170 N.W. 836 (1919).

A constructive trust arises where agent under oral contract to purchase for principal, purchases in own name. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).

Purchase of land by agent with his own funds, when he had orally agreed to attempt to purchase for principal, created a trust by operation of law. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).

A constructive trust is created by conveyance of property to one in confidential relation, under oral promise to reconvey. Koefoed v. Thompson, 73 Neb. 128, 102 N.W. 268 (1905).

Where a conveyance is induced by fraudulent promise of grantee to convey as grantor directs, a constructive trust arises. Pollard v. McKenney, 69 Neb. 742, 96 N.W. 679 (1903), modified 69 Neb. 753, 101 N.W. 9 (1903).

3. Miscellaneous

A high degree of proof is required to establish a trust by parol evidence. Parrott v. Hofmann, 151 Neb. 249, 37 N.W.2d 199 (1949).

Contract to devise land must be written, but is aided by part performance. Cobb v. Macfarland, 87 Neb. 408, 127 N.W. 377 (1910).

Where a person, knowing that a testator, in giving him a devise or bequest, intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies he will carry the testator's intention into effect, he will be held as a trustee and the statute of frauds cannot be successfully urged as a defense. Smullin v. Wharton, 73 Neb. 667, 106 N.W. 577 (1905), aff'd on rehearing, 73 Neb. 705, 112 N.W. 622 (1905).

Express trust cannot be raised by parol. Hansen v. Berthelson, 19 Neb. 433, 27 N.W. 423 (1886); Courvoirsier v. Bouvier, 3 Neb. 55 (1873).