205 P.2d 314 | Okla. | 1949
This is an action commenced in the district court of Oklahoma county by defendants in error against plaintiffs in error, Thad B. Johnson and Marie Johnson and the First National Bank of Bethany, Oklahoma.
Samuel T. Johnson and Lola E. Johnson, the defendants in error and plaintiffs in this action, are husband and wife. Thad B. Johnson is a son of Samuel T. and Lola E. Johnson, and Marie is his wife. Mary G. Johnson, now Brown, is the daughter of Samuel B. and Lola E.: Johnson and a sister of Thad B. Johnson.
The-action is to set aside a deed made by Samuel T. and Lola E. Johnson to Thad B. Johnson and a deed made by Mary Johnson to Thad B. Johnson. The land involved is about 2% acres, being approximately the north half of the south half of the southeast quarter of the northeast quarter of the southwest quarter of section 27, township 12 north, range 4 west, Oklahoma county, Oklahoma. The action also involves the ownership of $2,500, the proceeds of a sale of an oil and gas lease covering the five-acre tract here involved.
Plaintiffs in their petition allege that on and prior to December 5, 1938, they were the owners in fee simple and in possession of five acres of land, the south half of the southeast quarter of the northeast quarter of the southwest quarter of section 27, township 12 north, range 4 west in Oklahoma county, Oklahoma, and that shortly before that date defendant Thad B. Johnson persuaded plaintiffs to divide said tract of land between their two children, Thad B. Johnson and Mary G. Johnson, now Mary G. Brown, so that their said children at the death of parents would not be required to go to the expense of probating the estate or partitioning the land; that defendants Thad B. Johnson and the sister Mary orally stated, promised and agreed to and with plaintiffs that if plaintiffs would put the title to said land in them, they, Thad B. and Mary G. Johnson, or either of them, would, if required by plaintiffs, re-
Defendant bank answered admitting it held the $2,500 and that had it not been a party defendant it would have come in as an interpleader, and that it did not claim any interest in said money but stands able, ready and willing to pay the proceeds of the check to whomever the court may adjudge to be entitled thereto, or pay the same into court if ordered so to do.
Defendant Mary G. Johnson filed no pleading. Defendants Thad B. Johnson and Marie Johnson answered in the nature of a general denial, but later filed an amended answer and still later an amended answer and cross-petition. The amended answer after a general denial alleged in substance that, in 1923, the last will and testament of J. E. Bramble, the grandfather of the defendant Thad B. Johnson, was admit-ed to probate in Cooke county, Texas,
By cross-petition defendants by reference re-alleged all of the allegations set forth in their amended answer and .alleged that by reason thereof they were the legal and equitable owners of ,the property here involved and are entitled to all of the rents, royalties, profits and lease monies from said premises. They pray for judgment quieting their title to said property and that they be paid all royalties and lease monies due, received or held by plaintiffs or said bank.
Plaintiffs by reply denied all of the allegations of the amended answer except such .as were specifically admitted. They admitted all of the allegations of the amended answer in paragraphs one to. four thereof, inclusive, that is, the probate of the will of J. E. Bramble, the correctness of the copy thereof, and that by the terms of said .will defendant Thad B. Johnson was devised the three pieces of property described therein located in Gainesville, Texas, and that under the terms of said will Lola E. Johnson was appointed executrix thereof without bond,
The issues were tried to the court without a jury, resulting in a decree declaring the First National Bank of Bethany to be in a position of an inter-pleader and holding the $2,500, the proceeds of the check of the Phillips Petroleum Company, subject to the judgment of the court. As between plaintiffs and defendant Thad B. Johnson, the court found the issues generally in favor of the plaintiffs, and that defendants Thad B. Johnson and Marie Johnson had no right, title or interest in and to the check held by said bank, and that defendant Marie Johnson had no right, title or interest in or to the real property involved. The court further found that as between plaintiffs and defendant Thad B. Johnson, there was a resulting or constructive trust to the effect that plaintiffs should hold the legal title to the property involved and that plaintiffs should together hold the beneficial interest during their lifetime and upon the death of either plaintiff the survivor should continue to hold such beneficial interest during the lifetime of such survivor; and that .plaintiffs or the survivor of them should have the right of occupancy and take all of the rents, income and profits therefrom including the right to lease for oil and gas and to receive all lease bonuses, delayed rentals, royalties and benefits during the lifetime of the plaintiffs and the survivor of them, but that upon the death of both plaintiffs all the legal title together with all the benefits and interests, including all oil and gas rights or benefits thereafter accruing, should vest absolutely in defendant Thad B. Johnson.
In effect, the decree refused to cancel the deeds conveying the property to defendant Thad B. Johnson, but gave plaintiffs the right to possession and all income during the lives of plaintiffs and the successor of them. Defendant Thad B. Johnson and Marie Johnson appealed.
All the assignments of error relied upon are presented under one proposition: That the court erred in holding that defendant Thad B. Johnson took title to the real property involved as a trustee of the resulting or constructive trust, in that said agreement was not in writing; and that said decree was not supported by competent evidence and was contrary to the statute of frauds and the statute of uses and trusts.
The principal contention appears to be that the decree is contrary to the .provisions of 60 O.S. 1941 §§136 and 172.
60 O.S. 1941 §136 provides:
“No trust in relation to real property is valid, unless created or declared:
“1. By a written instrument, subscribed by the grantor or by his agent thereto authorized by writing.
“2. By the instrument under which the trustee claims the estate affected; or,
“3. By operation of law.”
“No such express trust shall be valid unless created, first, by a written instrument subscribed by the grantor or grantors duly acknowledged, as conveyances of real estate are acknowledged, and recorded in the office of the county clerk of each county wherein is situated any real estate conveyed to such trustee, as well as in the county where the principal property is located or business conducted; or second, by a will duly executed, as required by the law of the state. Such express trusts shall be limited in the duration thereof either to a definite period of not to exceed twenty-one (21) years, or to the period of the life or lives of the beneficiary or beneficiaries thereof. The instrument creating the trust shall specify the period of duration thereof within the limitations herein provided.”
Trusts of two kinds may arise by operation of law: (1) a constructive trust; (2) a resulting trust. No writing is required to create either.
There is nothing in either of the deeds to defendant Thad B. Johnson to indicate that right of possession or the right to the rents, profits, income, royalties, etc., from the property involved, was to be retained or go to plaintiffs or the survivor of them during their lifetimes. It is well settled that a resulting trust arises by operation of law where the legal estate in property is disposed of, conveyed or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. Maynard, Ex’r, v. Central Nat. Bank of Okmulgee, 185 Okla. 272, 91 P. 2d 653; Morton v. Williams, 190 Okla. 374, 123 P. 2d 960; Maynard v. Taylor, 185 Okla. 268, 91 P. 2d 649; Fibikowski v. Fibikowski, 190 Okla. 152, 121 P. 2d 304. In the latter case it is held:
“A resulting trust may be established by parol evidence, but the law requires that the proof necessary to establish it should be of the most satisfactory kind. The onus of establishing a resulting trust rests upon him who seeks its enforcement, and before a court of equity will be warranted in making a decree therefor, the evidence must be clear, unequivocal, and decisive.”
Under the rules there stated the burden was upon plaintiffs to prove their contention that they were and are entitled to receive the rents, profits, royalties, etc., from said premises during their lifetime. The trial court found those issues in favor of plaintiffs. The question is whether the evidence is sufficient to sustain that finding and whether the proof is clear and of the most satisfactory kind.
The evidence without substantial conflict shows that plaintiffs acquired the five-acre tract, the north part of which is here involved, in 1928; that in 1934, plaintiff Lola E. Johnson, who then lived in Oklahoma City, fell and broke her hip. She was in a hospital for a long period of time and it was uncertain whether or not she would recover. After her release from the hospital she was obliged to use crutches for a number of years. While she was in the hospital defendant Thad B. Johnson suggested to her that she should get her property in such shape so that in the event of her death her property interests would be cared for and suggested that a part of the title of said five-acre tract should be placed in his name and title to the other part thereof should be placed in the name of the daughter, Mary G. Johnson, and that would save time, trouble and expense of probating the estate. Nothing was done at the time and the matter dragged along until about 1938. In the meantime there were many discussions along that line, in a number of which defendant Thad B. Johnson urged that title to said tract be transferred as above stated. In one of these discussions, about February, 1938, the plaintiff Lola E. Johnson advised defendant Thad B. Johnson that she and her husband had decided to put the record title of said five-acre tract in the name of her chil
About January, 1945, the five-acre tract had become valuable for oil and gas purposes. A proposition to lease the land came from the oil company. The representative of the oil company first went to defendants Thad B. Johnson and Mary G. Johnson, now Brown, and made an offer of $2,500. They referred the representative of the oil company to the plaintiffs. The offer of $2,500 was acceptable to plaintiffs, whereupon the lease was prepared and executed by defendant Thad B. Johnson and Mary G. Johnson. The lessee gave a ten-day draft in the sum of $2,500 in payment for the lease. The draft was endorsed by them and delivered to plaintiffs. Plaintiffs then endorsed the draft and deposited it with the defend
There is evidence to the effect that plaintiffs did take control of and manage defendants’ property in Gaines-ville, Texas, and had never paid anything to said defendant Thad B. Johnson for or on account of rents collected, etc., and that they finally sold a part of said property and later traded the other part for a farm in Oklahoma which they still own. But there is also evidence to the effect that the income and rents from the Gainesville property were insufficient to pay the taxes, upkeep and insurance on the property, and that plaintiff Lola E. Johnson paid the deficit out of her own funds. There is further evidence that defendant became of age in 1926, and that shortly thereafter plaintiff Lola E. Johnson offered to turn all of the Gainesville property devised to defendant Thad B. Johnson over to him; that he then stated that he did not want to take charge of it because the income therefrom was insufficient to pay the taxes and upkeep, etc.; that plaintiff Lola E. Johnson continued to control the rents therefrom, pay the taxes, etc., for about five years thereafter, or until March 12, 1931, at which time, when he was about 26 years of age, defendant Thad B. Johnson made and executed a deed conveying all of his right, title and interest in and to the Gainesville property acquired by him under the will of J. E. Bramble to his mother Lola E. Johnson. The consideration expressed in that deed is “ . . Ten and No/100 ($10.00) Dollars. . . and the further consideration of the love and affection which I have for the said Lola Johnson, mother of Thad B. Johnson. . . ” From the record as a whole there is abundant, clear, unequivocal, convincing and decisive evidence to sustain the finding of the resulting trust as to the possession, rents, profits, income, and royalties found and decreed by the trial court. The fact that defendant Thad B. Johnson for seven or eight years paid rent to plaintiffs and that he never paid any part of the mortgage against the property which he is now claiming, and never paid any taxes or insurance thereon, and permitted plaintiffs to live in a house on that part of the land which'he is claiming without any claim of rent from them, is most convincing evidence against him. That part of plaintiffs’ claim of the promise to reconvey and for cancellation of the deed is clearly within the statute of frauds. The trial court.apparently recognized that fact and declined to decree cancellation of the deeds in question, and declined to require defendant Thad B. Johnson to reconvey the property to the plaintiffs. Said deeds are left effective subject to the resulting trust as to possession, rents, profits, etc., during the lifetime of plaintiffs or the survivor of them.
Affirmed.