65 Tenn. 364 | Tenn. | 1873
delivered the opinion of the court.
The defendant, A. M. Doak, had obtained a judgment against Mitchell McClure, and had execution issued and levied upon a tract of land in Hawkins county as the debtor’s property, and was proceeding, to have the same sold in satisfaction of the judgment, when he was prevented from proceeding by an injunction under the present bill.
This bill was. filed by Barsheba C. McClure, who is .the wife of said Mitchell McClure, for the purpose of setting up her right to said tract of land, an.d to enjoin the sale under Doak’s execution.
The bill, in substance, charges that about $2,750, derived from the sale of her interest as heir of her father in certain lands, and also certain slaves, was
The bill further charges that the said- Mitchell McClure became indebted beyond his ability to' pay without a sale of his real estate, and that some of these debts were pressing in the year 1871, and that to meet these demands, or to procure a loan for that purpose, he executed a deed of trust, conveying to Joseph Thompson, trustee, the tract of land above referred to, which then belonged to- said Mitchell McClure, being the one now in controversy, and also another tract owned by the complainant and inherited by her from her father, then deceased. The complainant joined in the execution of this deed. It was made to secure W. W. Brockway a note for $1,200, with interest, for money loaned, with a power to sell if the debt was not paid in twelve months.
The complainant charges that she assented and joined in this conveyance with the understanding and express agreement, that in case a sale of her tract of land could be effected, the said Michell McClure would conyey to her, or to a trustee for her sole and separate use, his own tract of land before referred to.
This deed of trust was executed on the 23d May, 1871, and registered. About the 22d of November, 1872, said McClure, with the consent of the trustee,
On the same day, the 22d of November, 1872, said Mitchell McClure conveyed his own tract of land, the one in controversy, in pursuance of his agreement, to Joseph McClure, in trust for the sole use of the complainant.
This deed was registered on the 10th of December, 1872. The execution of the defendant Doak was levied, upon the land on the 27th of November, 1872 — after the execution of the last mentioned deed for the use of the complainant, but before its registration.
The defendant Doak filed a demurrer to this bill, raising the question as to the superior rights of the parties. The Chancellor overruled the demurrer and allowed an appeal to this court.
It is manifest that if -the complainant’s claim rests alone upon the last mentioned deed conveying the land for her use, her right of relief as against Doak must fail, for the reason that this deed was void as to creditors until registered, and before its registration Doak had a specific lien fixed _ upon the land by the levy of his execution, aud this lien could not be displaced by the subsequent-. registration of the deed.
To avoid this result, we have been furnished with a very ingenious argument, placing the complainant’s claim upon the ground of a resulting trust.
• The cases where a resulting trust in favor of the ■wife has been established, are generally cases where her funds went directly into the land sought to be reached, and the trust attached to the title at the time it was obtained by the husband. In fact, it is a general principle in regard to resulting trusts proper, that the trust must arise out of the slate of facts existing at the time of the purchase, and attach to the title at that time, and not arise out of any subsequent contract or transaction. See Glee v. Gee, 2 Sneed, 395; 11 Hum., 457; 10 Hum., 9.
In the present case, the complainant is not seeking to follow the proceeds of the sale of her own land; this money went to pay her husband’s debts; she is seeking to set up a resulting trust in the tract ’of land to which her husband had long before that acquired title, in a way not in any manner connected with her estate. Hid Mitchell McClure hold the title to the tract of land in question as trustee for his wife, from the time he sold her land to pay his debts, by virtue of his agreement to convey this land to her or to a trustee for her use? We are of
opinion that he did not. It is argued that it was, in legal effect, the same thing as if. her money had
McClure having, by his agreement to settle this land to his wife’s use, obtained the proceeds of her land for the payment of his debts, a conveyance made by him in pursuance of this agreement, if reasonable and free from objection in other respects, ought to be upheld in equity; but her right rests upon the conveyance, and is subject to the registration laws. The husband’s agreement to convey his own tract of land was within the statute of frauds. No trust ever attached to this land; McClure did not obtain the title to it by use of the complainant’s money.
It is argued that complainant should be substituted to the rights of Brockway under the deed of trust, as her money paid the deed; but we think this principle not applicable to' a case of this character. With regard to the money of complainant charged to have been used by her husband in building the house, the bill does not charge that said McClure obtained this money under any agreement to invest the same in land for the complainant’s use. The only agreement charged to have been made in • regard to this, was that it should be used in building the house, but nothing more.
We conclude, that while it appears that the deed under which complainant claims is supported by a meritorious consideration, yet, as no resulting trust can be raised in her favor, her right must rest upon
The decree must then be reversed and the bill dismissed with costs.