Petzold v. Petzold

54 N.W. 933, 53 Minn. 39, 1893 Minn. LEXIS 260

Opinion

Gtlfillan, C. J.

No trust in favor of plaintiff, or in favor of any one not a creditor of Krass in the real estate which is the subject of controversy, could arise upon the sole facts that the consideration for its purchase was paid by Krass, and the conveyance taken to defendant Petzold. As the money paid belonged to' Krass, and plaintiff had no legal interest in it, he could do what he pleased with it, and, if he paid it for a. conveyance to Charles Petzold'alone, no one can complain. No trust could arise upon the conveyance unless it was taken to Charles Petzold alone, against the consent of Krass, so as to be a fraud upon him, so as. to defeat the intention with which he paid the money. From the allegations of the complaint, it might be argued or conjectured that such was the case, though those allegations are not necessarily inconsistent with the fact that when he paid he knew of, and consented to, the conveyance running to Charles Petzold. So important a fact as that he did not consent, being the only foundation upon which a claim in behalf of plaintiff could rest, ought not, in pleading, to be left to argument or inference, but ought to be expressly stated, so that a direct issue may be made upon it. For want of such an allegation the complaint was bad.

Order reversed.

Vanderburgh, J., took no part in this decision.

(Opinion published 54 N. W. Rep. 933.)