Opinion
Decided January 6, 1931.
A secret trust between husband and wife respecting real estate the title to which was taken in his name and the consideration therefor paid in part by him and in part by her under an agreement for joint ownership cannot be set up to defeat the rights of an attaching creditor of the husband.
BILL IN EQUITY, to establish a trust in land. Koyiades, a judgment creditor of Eraklis, holds an attachment lien on his land. The premises were purchased by the latter of the J. W. Land company under a contract dated April 13, 1912, by the terms of which payment therefor was to be made by weekly installments. Upon a final payment of $65.25, made July 25, 1918, the company gave Eraklis a deed which was recorded July 27. He built a house on said lot in 1925.
The plaintiff alleges that she contributed through Eraklis to said installment payments from and after her marriage to him on September 30, 1917, and also paid one half of said final payment of $65.25 on July 25, 1918; that she likewise contributed toward the cost of said building the sum of $479.19 which Eraklis had held in trust for her, and $10 per week paid to him weekly from her wages for the six years following the marriage; that all such contributions were made upon Eraklis' oral agreement with her that the premises should become their joint property upon the delivery of the deed from the land company to him.
To these allegations the defendant Koyiades demurred. To the order sustaining the demurrer a bill of exceptions was allowed by Scammon, J.
James A. Broderick (by brief and orally)[,] for the plaintiff.
Arthur B. Hayden (by brief and orally), for Olympia Koyiades.
It is unnecessary to consider the contention of Koyiades that on the facts alleged no resulting trust could be found to exist as between Sultana and Eraklis (Brooks v. Fowle, 14 N.H. 248, 260; Francestown v. Deering, 41 N.H. 438, 442; Pembroke v. Allenstown, 21 N.H. 107, 111; Moore v. Moore, 38 N.H. 382, 389; Bodwell v. Nutter, 63 N.H. 446, 447; Fessenden v. Taft, 65 N.H. 39, 41; Crowley v. Crowley, 72 N.H. 241, 244-5); for if the existence of a trust as between them were conceded, it was a secret trust as to Koyiades and could not be set up here to defeat her rights as a judgment creditor. Riddle v. George, 58 N.H. 25, 26; Corning v. Records, 69 N.H. 390, 396; Hopkinson v. Dumas, 42 N.H. 296, 304. See Kingsbury v. Smith, 13 N.H. 109, 118, 120; Bell v. Twilight, 18 N.H. 159, 166; Coolidge v. Melvin, 42 N.H. 510, 522; Stratton v. Putney, 63 N.H. 577, 579; Watkins v. Arms, 64 N.H. 99, 100. Bill dismissed as to Koyiades.
All concurred.