Long v. Mechem, 142 Ala. 405

Long v. Mechem

142 Ala. 405 | Ala. | 1904

SIMPSON, J.

This is an appeal from an interlocutory decree, overruling demurrers and a plea. The original bill was filed, to remove a cloud from the title of complainant, and was afterwards amended by adding a section, setting up a resulting trust, but making no additional prayer.

The first assignment of error is based on the overruling of the plea, the substance of the plea being that the trust set up in the amended bill was not in writing and consequently void under section 1041 of the Code of Alabama, (1896). •

The allegations of the amended bill show that the land, in question, was bought and paid for by the complainant, and the title taken in the name of one Duncan, under an agreement that Duncan was to hold the legal title for complainant, and to convey the land, whenever desired under complainant’s direction.

The contention of the respondent, is that the fact that there was a parol agreement in regard to said trust takes it out of the category of resulting trusts, and it is therefore void.

If the complainant had a resulting trust in the lands, from having paid the purchase money, and placed the title in the name of another, the mere fact that the party, in whom the legal title was vested recognized, by parol, the obligation to hold the land in trust, certainly could not destroy the resulting trust held by the complainant, *412by operation of law. In addition to- this, the section of the Code provides that no trust in lands, not- in writing is valid “except such as result by implication or construction of Imo, or which may be transferred or distinguished by operation of law.”

The inevitable result from the grammatical construction of the sentence is that, this class of trusts is excepted entirely from the operation of the section, and parol declaration® of the parties regarding the same are admissible.

The distinction between this case and such cases as Patton v. Beecher, et al. 62 Ala. 579, and Brock v. Brock, 90 Ala. 86, is that these, cases correctly hold that the “mere verbal promise, by the grantee of a deed for lands, absolute on its face” will not take it out of the requirements of the statute, while this case comes under another principle of law, equally well established, and recognized in the exception contained in the statute under consideration, to wit; that “if the purchaser of lands, paying the purchase money, takes the conveyance in the name of another, the trust of the lands results, by construction to him from whom the purchase money moves.” — Lehman, et al v. Lewis, 62 Ala. 129, 131; Tillman v. Murrell, et al., 120 Ala. 239.

It is true that in the last na'med case, as counsel for appellant say, the lands had been conveyed in accordance with the parol agreement, but the case was decided distinctly on the principle that Murrell held the legal title in trust for the party who- paid the money for it, “not by virtue of the parol agreement, but because of their having paid the consideration.”

There was no error in the decree of the court as to said plea.

The second assignment of error is included in the others. The third and fourth assignments of error, referring to the overruling of the first and second grounds of demurrer, raise the point that the bill, as amended is inconsistent with itself. These assignments are sustained.

The bill as originally filed, is a bill to- quiet title, under *413the statute. Alleging that complainant has title and is in possession, .that Long and McKenzie (who claim under quit claims from Duncan), have no right, title, estate or- interest in the land, and prays that they be required to show what claim or title they have, and that the court will settle, quiet and establish complainant’s title to said land, and decree that Long and McKenzie have no title, etc. While the amendment alleges that the legal title is in Long and McKenzie, but that they hold it, in trust for him, and the bill contains no appropriate prayer for the enforcement of said trust. The complainant should have amended his bill so as to rely on either one or the other of the theories stated, and his bill should be amended so as to pray for the appropriate relief. .

Referring to the sixth assignment of error: The complainant should have stated the substance of the powers of attorney with sufficient definiteness to have informed the defendant what they contained, in order that they might have been able to judge whether to-admit or deny the allegation. Therefore, the 4th ground of demurrer, was well taken, and should have been, sustained.

The 5th, 7th, 8th, 9th and 10th assignments of error raise the same points heretofore discussed under the 1st assignment.

The 11th and 12th assignments of error cannot be sustained because; 1st, the powers of attorney referred to are not set out, or their substance given, so- that the court cannot- determine what their force and effect might have been; and 2nd, the matters alleged in the demurrers relate rather to the probative force of said powers of attorney than to the sufficiency of the pleading in which they are mentioned, and under a previous assignment we have held said pleading insufficient.

The decree of the court is reversed and the cause remanded. _

McClellan, C. J., Tyson and Anderson, J. J., concurring.