198 P. 546 | Mont. | 1921
delivered tbe opinion of tbe court.
This action was brought by plaintiff against defendant for tbe purpose of ejecting defendant from a certain lot in the original town site of Moore and quieting title in plaintiff thereto. The case was tried to the court without a jury. Findings were made in favor of defendant, and judgment followed. Motion for new trial was made and overruled. Plaintiff appeals from the judgment and order overruling motion.
Margaret Wolf, deceased, was formerly Margaret Fleming, and the wife of A. D. Fleming, the defendant. In May, 1905, a deed was made by Montana Town-Site Company to Margaret Fleming conveying the premises. As an affirmative defense the answer alleges that defendant paid certain sums of money on the contract for the purchase of the lot, that no consideration was ever paid by Margaret Fleming for the execution and delivery of the deed, and that immediately prior thereto it was agreed between defendant and his wife that
Margaret Fleming did not record the deed immediately after receiving it, but held it until March, 1915. On the 14th of March, 1913, defendant, learning that her deed had not been recorded and assuming that it had been lost, procured another deed from Montana Town-Site Company, which deed was issued as a duplicate of the former one, but in the name of defendant. This deed was recorded March 15, 1913. On March 25, 1913, the original deed to Margaret Fleming was recorded. On the 21st of May, 1915, Margaret Wolf, formerly Margaret Fleming, died, and plaintiff was appointed administrator of her estate. By reason of the recording of the deed to defendant, this action was brought.
It is the contention of defendant that, under the facts stated, Margaret Fleming took the title to the premises in trust, and that he is entitled to have the title quieted in himself.
One of the errors assigned is that the court erred in finding that the consideration for the lot was paid by defendant, and that the property was held in trust by Margaret Fleming for defendant. The case may be disposed of upon this assignment of error, and therefore it will be unnecessary to consider any of the other alleged errors.
The supreme court of California, from which state our statute was taken, in the case of Hamilton v. Hubbard, supra, has given a similar construction to the statute in the following language: “Ordinarily indeed, where a conveyance is made to one, and the consideration paid by another, a trust is ‘presumed’ in favor of the latter. (Civ. Code, sec. 853.) But this presumption arises only in transactions between ‘strangers to each other’ (1 Perry on Trusts, sec. 126), and is not indulged where the conveyance is to the ‘wife or child, or other person, for whom (the person paying the consideration) is under some natural, moral, or legal obligation to provide.’ In such cases the presumption is ‘that the purchase and conveyance were intended to be an advancement for the nominal purchaser.’ (1 Perry on Trusts, sec. 143; Hill on Trustees, 97, and note.) The transaction was therefore a gift to Mrs. Hamilton, and, under the express provisions of the Code, her separate property. (Civ. Code, sec. 162.)” There are some California cases holding that in certain instances this statute is applicable to dealings between husband and wife, parent and child, but in each of those cases there appears a breach of confidence or trust whereby a trust ex maleficio results; but we are unable to find any case in which a resulting trust is presumed when a husband voluntarily takes the title in the name of his wife and there has been no breach of faith on her part.
"While in such cases the presumption is that the conveyance was intended as a gift, yet it is a rebuttable presumption. In this case, however, there is nothing to rebut this presumption, as the record is entirely devoid of any evidence whatever show
Defendant has so slept on his rights, if he ever had any, that his contention utterly fails to appeal to the sense of justice and equity of this court.
The judgment and order overruling motion for a new trial are reversed, and the cause is remanded to the district court, with directions to enter judgment for plaintiff pursuant to the prayer of the complaint.
Reversed and remanded.