166 Ark. 233 | Ark. | 1924
F. R. Wood, one of the appellees, instituted an action in the circuit court of Madison County against George A. Reese and Gussie E. Reese to recover on a note in the sum of $4,949, executed by them to the said appellee, and he caused a general attachment to be issued against the defendants and levied on personal property and real estate — numerous tracts of land containing several thousand acres. Said defendants were nonresidents, and were brought in by publication of warning order. The court rendered judgment in favor of appellee Wood against the defendants for the amount of the note; with interest, amounting to the aggregate sum of $7,679.27, and ordered the attached property sold by the sheriff. There was a sale of the property, and the real estate was purchased by appellee C. E. Crawford, and the sheriff reported the sale to the court for confirmation. At the term at which the report of sale came up for confirmation, but' before there was an order of the court in that regard, appellant, a foreign corporation, appeared and filed what was termed an interplea, asking that the sale be not confirmed, but that it be set aside'. Appellant alleged that George A. Reese held the legal title to the lands in controversy, in trust for appellant, and that, shortly after the purchase of the land by Reese, appellant, through its agent, entered into possession of a portion of the lands, cleared up about five hundred acres, and fenced it and built houses and other improvements thereon. The plea contained a prayer for .transfer of the cause to the Madi-' son Chancery Court, and that, on final hearing, appellant be decreed to be the owner of the lands or have a lien on the lands for the amount it had expended on permanent improvements.
Appellees Wood and Crawford answered the inter-plea, denying that appellant was the owner of the land or that the same was held in trust for appellant, and the cause was thereupon transferred to the chancery court. On final hearing, the court dismissed the complaint or interplea for want of equity.
Appellant was not a party to the original action, and was not bound by the judgment or by the sale made thereunder, but its interplea was answered and the cause was transferred to the chancery court, hence we may properly pass over the original proceedings in the action of appellee Wood against defendant Reese and treat the status of the present proceeding as an effort on the part of appellant in a court of chancery to enforce an alleged trust whereby Reese held the title to the lands for the use and benefit of appellant.
Appellant offered the depositions of three witnesses .-to establish the alleged trust, and appellees filed a motion to exclude the testimony as incompetent. It was disclosed in' the testimony of appellant’s witnesses that there was a written contract between Reese and appellant whereby he agreed to hold the land in trust for appellant, and to convey the same to appellant. The writing was unaccounted for, and it was improper to prove its execution and contents by oral testimony. The court was therefore correct in excluding this testimony, so far as it referred to the written contract.
It is further contended that there was a resulting trust on account of appellant furnishing money to use in the improvement of the lands, and which was used in such improvement. There is no proof, however, that appellant furnished money with which to buy the lands. The rule is well settled by decisions of this court that, in order to constitute a resulting trust, the contribution of funds upon which the trust is claimed to have arisen must have been made at the time of, or prior to, the purchase, and not afterwards. Reeves v. Reeves, 165 Ark. 505. The proof in the present case does not show that appellant contributed funds with which to purchase the lands, and no trust arose on account of its having furnished funds later with which to improve the property.
Affirmed.
