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75 Ind. 571

Rooker v. Rooker

Indiana Supreme Court

Decided May 15, 1881

Indiana Supreme Court · decided 1881-05-15

<p>Trusts. — Implied or Parol Trust. — Express Trust. — An implied or parol trust can not be created by putting money in the hands of another, to be invested in land for the use and benefit of a third person. This can only be done by an express trust in writing.</p> <p>Same. — Good Faith Purchaser at Sheriff's Sale. — A good faith purchaser of real estate at sheriff’s sale, without notice, or his assignee, will be protected from secret trusts and unrecorded liens. Elliott and Nib-lack, JJ., dissent.</p> <p>Same. — Action to Enforce Parol Trust and Quiet Title. — Notice of Trust.— Demurrer. — In an action to enforce a parol trust and to quiet title to real estate, the complaint alleged that a married woman placed her separate personal property in the hands of her husband, in trust, to invest in real estate for her daughter, who invested it in the real estate in controversy, but took the conveyance in his own name, and had it duly recorded; that, previous to his death, for the purpose of fully .executing the trust, he devised such real estate to the daughter,which will was, after his death, duly probated; that such real estate, during his lifetime, was sold on execution against him, the judgment plaintiff being the purchaser, and having no notice of such trust; that afterward the defendant purchased the certificate of sale and took a sheriff’s deed for the land, with full knowledge of all the facts, under which deed he claims title. Prayer that the land be declared held in trust for such daughter, and that the title thereto be quieted.</p> <p>Held, on demurrer, that the complaint was insufficient.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1881-05-15

How this case has been cited

Cited by 17 later decisions — most recently December 1914

17 state decisions

701881189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Dissenting Opinion.

Elliott, J.

¶2I concur in the conclusion. There are two propositions stated and approved in the principal opinion to which I can not assent. The first of these is, “that a good faith assignee of a judgment without notice is protected from secret trusts and unrecorded liens.” I am firmly convinced that a judgment, whether in the hands of the original judgment plaintiff or of his assignee, is not such a lien as will displace or destroy an equity existing prior to the rendition of the judgment. It is incontestably true, that a judgment in the hands of the judgment plaintiff is only 'a general lien on the actual interest of the debtor, and that it is subject to all existing equities. The mere fact that an assignee buys it does not give it a new force immensely superior to that which it had in the hands of the judgment plaintiff. It seems to me that giving to a judgment in the hands of an assignee a force so vastly increased as to compel existing equities to yield to it, is annexing to the fact of assignment an unreasonable importance. I can not understand on what principle the assignment can be justly held to extend the lien of the judgment to an extent so far beyond its original proportions.

¶3The second proposition, which I regard as erroneous, is, that a judgment plaintiff who buys at his own sale is to be deemed a bona fide purchaser, and the title thus acquired held to be superior to existing equities. I do not think a judgment plaintiff can be deemed a bona fide purchaser in such a sense as to require the subordination of pre-existing equities to his title. Nor do I believe that the purchase by him ad^s anything at all to his rights as against equities existing in favor of third persons. His title mounts no higher than his judgment.

Niblack, J., concurs with Elliott, J., in his objections to the first proposition above named.
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