Gee v. Gee

32 Miss. 190 | Miss. | 1856

Eisher, J.,

delivered the opinion of the court.

The bill alleges that the complainant purchased at a sale under a decree of the Probate Court of Lowndes county, the land in controversy, in the name of his son Andrew; that the deed was accordingly made to him, and he gave his note with the complainant as security for the purchase-money; that the object of the purchase in this manner was for the complainant’s son Andrew, to have one-half of the land, and another son of the complainant to have the balance. The bill further avers that the complainant has since paid the purchase-money, and hence it is contended that a trust resulted to him.

We differ with counsel on this point. The law presumes in regard to such transactions between parent and child, that an advancement was intended. But aside from this rule, a trust only results where the money was actually paid at the time of the purchase. 4 Kent, 317. In this instance, according to the allegations of the bill, the complainant was the security of his son, and we must suppose that he paid in that capacity; if so, he has his remedy against the son’s estate. •

It is next alleged that the son, just before his death, executed a deed, by which he conveyed the land to the father. This deed was never acknowledged, and the proof of its execution, to say the most for it, is conflicting. If the complainant wishes to claim under this deed, his remedy is ample at law. It may be true-that he will meet with as much difficulty in making his proof in that court as be bas met with in a court of equity, but this is tbe very reason wby equity should deny bim relief. The case presents purely a question of fact, whether the complainant has acquired the legal title to the land ; and the very nature of the case would seem to require the action of a jury, and not of a chancellor. Of course the deed does not convey the dower claimed by the widow, as she is not a party to the deed.

Decree affirmed.