64 Ark. 155 | Ark. | 1897
(after stating, the facts.) This case turns mainly upon certain questions of fact: First. Did James Bennett purchase and pay for the land which was conveyed to his brother Thomas Bennettl , Second. If he paid the consideration, did he intend that his brother should take the beneficial interest therein, as well as the legal title, or did he intend a benefit to himself ?
As to the first question, it is beyond dispute that Thomas Bennett, to whom the conveyance was made, paid no part of the consideration, and that the greater part of the purchase price was paid by James Bennett. The only room for doubt about this matter is whether James Bennett paid nine-tenths of the purchase price, as the circuit judge found, or only seven-tenths of it. But in either event a trust pro tanto would result in his favor, unless his intention was that his brother, and not himself, should take the beneficial interest. Watson v. Murray, 54 Ark. 499. On this point appellee testified' that he did not intend the conveyance of the land as a gift to his brother, and that nothing was said about the purchase price being a loan. Appellee further testified that he purchased the land at the request of his father, who told him that if he would pay for it, he might have it. The circuit judge found that no gift or loan of money was intended, and that a trust resulted in favor of James Bennett, and we are unable to say that the finding is not supported by the evidence. The evidence clearly shows that James Bennett paid at least seven-tenths of the purchase money. Fz'om this fact alone, in the absence of other controlling ciz’cumstances, a pz'esumption arises that he intended the purchase for his owzi benefit, and that the legal title was takezz in the name of his bz’other for the purpose of temporary convenience, and not to deprive him of his beneficial interest. Equity regards substance rather than form. The man who pays the purchase money is in equity supposed to become, or to intend to become, the owner of the property; and, in the absence of proof to rebut such intention, the beneficial title follows that supposed intention, although in form the legal title may be taken in the. name of another. Milner v. Freeman, 40 Ark. 62; Gainus v. Cannon, 42 ib. 503; Watson v. Murray, 54 ib. 499; Merwin’s Equity, § 225; Bispham’s Equity, § 80; Fetter’s Equity, 194.
There is an exception to this rule when the person in whose name the title is taken is one whom the purchaser is under obligation to support, such as a wife or child. In that case an advancement is presumed, and, in the absence of other pz’oof, no trust results. But there is no obligation to support a brother, and this exception does not extend to them, for they are in law regarded as strangers. Edwards v. Edwards, 39 Pa. 269; Kline v. Ragland, 47 Ark. 111; Gainus v. Cannon, 42 ib. 503. See also Bennet v. Bennet, L. R. 10 Ch. Div. 474, where this question was discussed by Jessel, M. R. .
The facts proved in this ease do not, in our opinion, overcome the presumption in favor of James Bennett, male by the proof that he paid the purchase money, supported as that presumption now is by the finding of the circuit judge. The evidence does not clearly show that, at the time this land was bought and the purchase money paid, a gift to Thomas was intended, or that there was any understanding between James and Thomas that the amóunt paid by James was to be considered as a loan to Thomas. So far as the proof goes to show, Thomas Bennett was not consulted. It is true that he afterwards on several occasions expressed a willingness that James Bennett should sell the land, and get his money. James Bennett also testified that he expected either to get his money or to hold the land. But these statements are not inconsistent with the fact that a trust resulted at the time of the purchase. If, at the time of the purchase, James Bennett intended to hold the beneficial interest in the land for himself, the trust thus resulting would not be released by mere expressions of this kind. It would take something more to divest one of the equitable title to land. Gainus v. Cannon, 42 Ark. 503; Edwards v. Edwards, 39 Pa. St. 369. While the intention of James Bennett in purchasing this land is not clearly shown, and although the evidence on this point might to some minds support a different conclusion from that reached by the circuit court, yet certainly the evidence against such finding is not sufficiently strong to justify us in overturning it, and it must stand.
On the other point, .as to whether James Bennett paid for seven-tenths or -nine-tenths of the land, we entertain more doubt. Both James Bennett and his brother Levi testified that James Bennett paid all the purchase money except twenty-five dollars, which were paid by Levi Bennett. But each of them at first stated that there were only eight of the Neal heirs, and that $175 was the amount paid by James Bennett. Another brother testified that the amount paid by James Bennett was about $140 to $160. Now, there were ten of the Neal heirs, and as each of them was to receive $25, the amount that James Bennett said that he paid would only cover seven-tenths of the purchase money. This is an effort to establish a resulting trust in favor of James Bennett by parol testimony, and to do so it is incumbent upon him to show by evidence, “full, clear and convincing,” that the purchase price of the land, or for a certain portion of it, was paid by him. Johnson v. Richardson, 44 Ark. 365; Crow v. Watkins, 48 ib. 173; 10 Am. & Eng. Ene. Law, 29 and 30.
We feel convinced that he paid seven-tenths of the purchase price for this land, but we are of the opinion that the evidence is not sufficiently convincing to establish a resulting trust in his favor for more than that amount of the land.
The decree of the circuit court will be modified to this extent, and in other respects affirmed, but the cause will be remanded, that a decree may be entered in the Benton circuit court in accordance with this opinion.