27 S.D. 80 | S.D. | 1911
This action was -brought bj the plaintiff to have a certain deed given to defendant by plaintiff and his wife set aside so far as 40 acres of the land therein described was concerned, to have the court decree that defendant held title to said 40 acres as trustee for plaintiff, and decree a reconveyance from defendant to plaintiff of said 46 acres. It was the claim of plaintiff that 80 acres of land belonging to him was conveyed by himself and wife to the defendant under an agreement whereby 40 acres of said land was to become the sole property of defendant in consideration of his paying the mortgage indebtedness existing against the whole 80 acres, the other 40 acres to be held by the
Two questions are presented to us upon this appeal: (i) Was plaintiff the owner of this land at the time of the conveyance to defendant, and therefore the equitable owner when action was brought, and, as such, entitled to bring this action? ' (2) Under the evidence in the case, does it appear that the defendant held 40 acres of this land as trustee for the person who conveyed the same to him?
We have carefully considered all the evidence bearing upon the second question and believe.the same ample to support findings sufficient to sustain a conclusion that, even if there were no express trust, yet there existed a constructive trust in favor of whoever was the beneficial owner at time of the conveyance to defendant. The plaintiff brought this action as, and claiming to be, the sole owner of said forty acres of land. The defendant claims that plaintiff’s wife was the owner of the land at-time of the conveyance under which defendant claims title, and that inasmuch as plaintiff is not claiming any rights a's heir or successor of his wife, he cannot maintain this action. In this claim we think defendant is correct. It appears that some 20 years prior to the trial of this cause, being some 13 years prior to the deed under which defendant claims title and which the trial court found created a trust in favor of plaintiff, plaintiff and his wife were living upon a quarter
It will -thus be seen that the question before us is exactly the same as it would be were the wife living, and she and plaintiff not having given the 8o-acre deed, plaintiff -had brought an action against her asking a decree adjudging such wife to be the holder of a mere naked legal title and plaintiff the real owner of the land. The evidence before us must be sufficient to warrant such a decree, in such an action between plaintiff and his wife, in order to show plaintiff entitled to bring this action as the owner of such land at time 8o-acre deed was given. The only evidence bearing upon this point was given by the plaintiff himself, and, reduced to narrative form, it is as follows: “Mr. btorm asked me if my wife had a deed of this property. There was no money paid for a deed that went to her. Willie [defendant] told me to give a deed to my wife. I deeded it to Willie first and he deeded it to his mother. When I made the deed to Willie, he paid me nothing. My wife paid nothing to him when that deed was- made. These deeds were given to have some money to help- Willie. He wanted
What, then, have we left? Simply the fact that, at a time so long before the 8o-acre deed as to have no possible connection therewith, the plaintiff rightfully or wrongfully supposing it necessary to get his land into his wife’s name in order to make a loan thereon, conveys the land to her and the title so remains for some 13 years when such title is conveyed to defendant by a deed wherein the grantors are described, “Mártha H. Kjolseth and Jens E. Kjols'eth, her husband,” with a like description in the acknowledgment, and with the wife’s signature to such deed above the husband’s. It appears that in 1898, 1899, and 1900 the wife and husband gave notes secured by mortgages on this land, and in each case the wife signed the notes above husband’s signature. From such facts will the law presume that the conveyance • to the wife was understood to be merely colorable, and as in fact conveying no interest in the land? We think not. It is the presumption, where there is nothing shown to the contrary, that a conveyance by the husband to the wife is for her support, and a proper provision for her comfort. 21 Cyc. 1290 and 1297. There is no
As was said in Earnest’s Appeal, 106 Pa. 310, -in speaking of a conveyance which the law would presume to be an advancement or gift, where it is claimed a trust was imposed in favor of a husband : “This may appear from the attending circumstances, or from the acts or declarations of the parties at the time of the purchase, but it must be shown by evidence which is clear, explicit, and unequivocal. The presumption of gift, it is true, is but a presumption of fact, which determines the burden of proof. Yet, as the effect of the rebutting evidence may be to- fasten a trust upon the legal title, it must for that reason conform to the measure stated. Every element essential to the existence or creation of a resulting trust in any given case must be clearly shown. This rule grows out of the policy pursued under the statute of frauds, and its enforcement is'essential to the secure enjoyment of real property.”
Under plaintiff’s own evidence one of two things is certain: The conveyances passing apparent title to the wife were executed with a purpose, upon the part of plaintiff, to defraud his creditors, or else was the means which he thought necessary to place the real title to the land in his wife. The following words from a case very similar to this seem pertinent to the facts herein: “The deed from the plaintiff’s husband and herself to their son, Peter J., on the 18th of April, 1859, conveyed whatever title her husband then had in the property to Peter J., and has deed to the plaintiff on the 21st day of April, 1863, invested her with that -title. Whether the controlling motive in these transactions was to defraud creditors of' the plaintiff’s- husband, or to place the title, by what was supposed to be the necessary legal steps, in the plaintiff, it would seem to be quite certain that he retained no interest, either in a court of law or equity, should he seek to reinvest himself with the title, for the reason that he had parted with it for either of. these purposes.” Chicago v. McGraw, 75 Ill. 566.
The judgment of the trial court is reversed, and this cause remanded for further proceedings consistent with the foregoing opinion.