180 P. 586 | Utah | 1919
Lead Opinion
Plaintiff and defendant were formerly husband and wife. They were divorced in 1912. Prior to that time, as husband and wife, they had accumulated considerable property, in-
After working a while at his trade as a printer in Utah, plaintiff and defendant went to Idaho, and there acquired a small piece of land in the town of Rexburg. This he sold for the sum of $1,200. With the money thus obtained, some time afterwards, he purchased the lot in controversy situated in Salt Lake City. At the time of the purchase, w'hich was in 1909, plaintiff and defendant conversed together as to whom the property should be conveyed. Plaintiff said to his wife, “We better put it in your name; if I can't trust you, I don't know who I can trust. ’ ’ Thereupon the deed to the property was made to the defendant. They also accumulated other property in Salt Lake City, but it is not of special concern in this proceeding.
In 1912, for .some reason not disclosed by the record, defendant brought an action against plaintiff to procure a divorce. An interlocutory decree was entered. About the same time plaintiff in this case sued defendant to recover the premises now in controversy. While these cases were pending plaintiff and defendant, at defendant’s solicitation, came together and mutually agreed that her action for divorce and his action to recover the property should both be dismissed and thei’eafter they would resume cohabitation as husband and •wife. The plaintiff, in pursuance of said agreement, dismissed his action to recover the property, but defendant continued her action for divorce and obtained a final decree. She thereafter married Cercone, with whom she was living as a wife at the time this case was tried.
As a defense defendant relies on the deed above referred to, the statute of frauds (sections 5811 and 5813, Comp. Laws. 1917) and the statute of limitations (section 6449, Id.)
The trial court, sitting without a jury, found the issues in favor of plaintiff. Judgment was entered thereon. Defendant appeals.
Plaintiff himself has brought some confusion into the case by unnecessarily alleging that plaintiff and defendant became the owners of 'the property through purchase by means of their joint earnings. This induced defendant to place some reliance upon the supposition that she, at the time of the purchase, acquired some special interest in the property separate and apart from her interest as a wife. The record fails to disclose any such interest. The exact nature of her interest is properly reflected in a single question propounded to plaintiff on cross-examination and his answer thereto. We quote from the transcript:
"Q. Now you alleged in your complaint that the earnings here were the joint earnings of you and your wife; that is, you each had an interest in the earnings? A. Well, I considered her had some interest in it because she was looking after the house and the children and helping me what she could do.”
Tt requires neither argument nor comment to convince 'the understanding that such interest of the wife does not constitute a separate estate in her, even in Utah, where
With this confusing element eliminated from the case there js nothing to obscure our vision in respect to the main ques
Respondent cites the following from 39 Cyc. pp. 118, 119:
“It is a well-settled rule' of equity, in the absence of statutory provisions otherwise, that where property is paid for with the money or assets of one person, and the title thereto is taken in the name of another person, in the absence of circumstances showing a different intention or understanding a resulting trust in the property arises in favor of the person whose money or assets are so used, or persons claiming under him, the controlling question being the ownership of the purchase money, and this is true, although there is no actual intention on the part of the party purchasing and taking the conveyance to hold the equitable title for the party whose funds are used in the purchase.”
Tbe above excerpt is part only of an entire paragraph, the notes to which cite cases from nearly every state in the Union. It is not necessary to cite the cases here.
“The rule relative to a resulting trust in favor of tbe person paying tbe purchase money for property conveyed to another does not apply where the conveyance is made to the wife of the person paying the money; but, in such a case, it will be presumed, in the absence of circumstances showing a contrary intent, that the conveyance was intended as a gift, settlement, or advancement to the wife, and not as a resulting trust to the husband, * * * ”
“The presumption, however, in favor of a gift or advancement may be rebutted, and a resulting trust in favor of the husband will arise where the circumstances existing at the time of the conveyance show an intention that the wife shall not take the beneficial interest. * * * ”
These excerpts are well supported by the cases cited, many of which we have examined. Under the exception to the general rule, as stated in the quotation it must be presumed in the present case that the deed to the defendant was intended as a gift unless “the circumstances existing at the time of the conveyance show an intention that the wife should not take the beneficial interest.”
The uncontradicted testimony in the case leaves no doubt in our minds that it was not the intention of the plaintiff that the defendant should take the beneficial interest. It was not intended as a gift or an advancement. When the question arose between them as to who should be named as grantee in the deed the plaintiff said, “We better put it in-your name; if I can’t trust you, I don’t know who I can trust.” Certainly this was not the language of a donor in the act of making a gift. It was more like the expression of one creating a trust in favor of himself, and such we are constrained to hold it to be. It is not necessary, however, in this ease to rely on the language used by the plaintiff for the purpose of establishing the trust. We are not unmindful of the rule that, “to establish a resulting trust * * * in favor of one who furnished purchase money, public policy and the safety and security of titles to real estate, demand that the
Appellant’s plea of the statute of frauds is not supported by authority. The single case cited Skeen v. Marriott, 22 Utah, 73, 61 Pac. 296, relates to an express trust and
Appellant also relies on the statute of limitations (Comp. Laws Utah, 1917, section 6449), which provides:
"No action for tlie recovery of real property,, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed of the property in question within seven years before the commencement of the action.”
"We are not informed by any express declaration of appellant’s counsel as to when in his judgment the statute of limitations began to run. From the fact, however, that he pleads the seven-year statute, and this action was commenced in 1917, we assume his contention to be that the statute began to run in 1909, when the property was purchased and the deed made to defendant. On that hypothesis the bar of the statute was complete when the action was commenced in 1917. Did the statute begin to run in 1909? That is the question to be determined. Counsel for appellant, in support of his contention, cites 25 Cyc. 1155,1156, to the effect that the rule which holds that the statute does not begin to run until there has been a repudiation by the trustee applies only to express trusts; that in the case of an implied or resulting trust the statute is set in motion as soon as the beneficiary becomes entitled to assert his rights. The authority cited, on its face, seems to support this view. However, the question still remains as to whether there is not a vital distinction to be found even be
“It is true that there are cases where the demand must be made within the period fixed by statute. Newson v. Bartholomew County, supra [103 Ind. 526, 3 N. E. 163], and cases cited. But it is also true that there are cases where a different rule applies. Such a case, for instance, is that of a continuing trust, or of a contract to keep for another money of which he makes a deposit [citing cases.] No general rule can be laid down that will fit all cases, since there are cases where justice requires that a demand should he made within the statutory period, while in others the nature of the contract and the situation of the parties require that it be adjudged that the trust or obligation is a continuing one, which is not violated or broken until there is a refusal to honor a demand, and that until the statute does not begin to run [citing cases].”
Tbe cases cited support the doctrine announced in the quoted excerpt.
In Faylor v. Faylor, 136 Cal. at page 96, 68 Pac. at page 484, where the statute of limitations was invoked against a resulting trust, the court says: ,
“The action is not barred by any statute of limitations. The trustee held under the original understanding, and did not repudiate his trust until shortly before the action was brought. The trust was a resulting trust, and was not within the statute of limitations so long as the trust relation existed unrepudiated.”
“Where a trust, voluntarily assumed, was by the understanding of the parties to be a continuing one, and the trustee continued to hold according to the undertsanding, and never repudiated the relation, or did any acts inconsistent with it, the statute of limitations does not run as against the cestui que trust.”
We heartily approve the doctrine announced in these cases, and believe it to be especially applicable to the facts in the instant ease. But there is another reason appearing on the face of the statute relied on by appellant why the statute should not be a bar to plaintiff’s right to recover. Respondent as well as appellant was in possession of this property until she brought her suit for divorce in 1912. Their possession was joint or in common. Under the very terms of the statute relied on as a bar appellant’s contention cannot be sustained. In addition to this there is another question presented for our consideration. The record shows that plaintiff commenced an action to recover this same property in 1912, while defendant’s divorce proceeding was pending against him; that at that time, at defendant’s suggestion, plaintiff and defendant entered into an agreement that if plaintiff would dismiss his action to recover the property defendant would dismiss her action for divorce and they would resume cohabitation as husband and wife.. In pursuance of this agreement plaintiff dismissed his action to recover the property,
The following doctrine is enunciated in 25 Cyc. 1016:
“The doctrine of equitable estoppel may, in a proper case, be*354 invoked to prevent defendant from relying upon the statute of limitations, it being laid down as a general principle that, when a defendant, electing to set up the statute of limitations, previously by deception or any violation of duty towards plaintiff has caused him to subject his claim to the statutory bar, he must be charged with having wrongfully obtained an advantage which equity will not allow him to hold.”
Many of tbe cases cited in the note, also in note 67, same paragraph, support the language of the text.
This disposes of all the assignments of error necessary to be considered.
The judgment is affirmed, at appellant’s costs.
Rehearing
ON APPLICATION POR REHEARING.
On application for rehearing appellant urges the point that the complaint is insufficient to support the judgment. Let it be granted that the complaint is not a model of good pleading, the question is, however, Is it sufficient as against a general demurrer ? In the first paragraph - it alleges exclusive ownership in the plaintiff. In the second it alleges that the defendant claims an interest in the property without any right whatever. In the third it alleges that the title was placed in defendant’s name without any consideration. And in the closing paragraph it alleges that defendant holds the title in trust for the plaintiff. In the face of these allegations,, every one of which implies exclusive ownership in the plaintiff, the further allegation that the property was purchased with the joint earnings of plaintiff and defendant clearly implies that such earnings occurred in the ordinary relations
The petition for rehearing is denied.