102 Ala. 277 | Ala. | 1893
The original bill averred that Stanford, the complainant, purchased a parcel of land from E. 0. Milner, deceased, the intestate and ancestor of the respondents, was put in possession under the sale, and subsequently paid the purchase money in full during the life time of said Milner, but that the vendor failed to execute a conveyance to the vendee ; and its purpose and prayer were to have the contract of sale specifically performed, and the execution of a conveyance by the administratrix and heirs at law of Milner decreed. At the hearing on the merits the bill was amended, by striking out its averments and prayer in respect of a bargain and sale by Milner to the complainant, and by alleging in lieu thereof that “the land was purchased by the said E. C. Milner from the [Mobile & Montgomery] railroad company for the complainant under an agreement by which the said Milner was to purchase said land and advance the money for complainant, to be paid back by the complainant with actual expenses and interest ; the said Milner to take the title deed in his own name, and thus hold it until the purchase money, expenses and interest were paid, which was sixty dollars,” that said purchase money, interest and expenses were paid by complainant to Milner, according to the terms of agreement, about the year 1886, ‘ And that said Milner repeatedly promised to execute title deeds to said land before his death, but died without doing so.” The prayer of the amended bill is, “that a resulting trust be declared in favor of the complainant as to said land, and that the register in chancery be required to execute to your orator a deed to the same,” &c.
The respondents moved to strike out this amendment on the ground that it was an entire departure from the original bill. This motion, we think, was properly denied. The amendment merely varied the details of one
But while a bill to execute a resulting trust is in the nature of a bill for specific performance of a contract, it can not be supported by evidence which would present a case for the latter form of relief. A trust of the class asserted in this bill as amended exists only where one has purchased property with the funds of another and taken title in himself. The funds used may have presently become the property of the other party, by a loan or advance to him by the purchaser who takes the title to secure to himself repayment of such loan. And it must always be made to clearly appear that the purchase was with funds previously belonging to the party asserting the trust, or that it was made for him and the purchase money presently advanced by the purchaser as a loan to him, for the security of which the legal title is taken to and in the name of the purchaser. Without this there can be no such thing as a resulting’ trust. That the purchaser bought and paid for the property with a view to its sale to another, that he purchased for the other, in the sense of intending a resale to him at the same or any other price, will -not suffice. Where the purchaser uses means previously belonging to himself in making the payment, it must appear that he purchased for the other, in the sense of intending the original transaction to be an equitable sale directly to the other, and the payment by that other out of funds which he has loaned to him for the purpose. These essential facts are not found in the evidence before us. The
Whatever of obligation at any time rested upon Milner to convey the land to Stanford, or upon Stanford to pay Milner for the land, whatever of mutual duties existed between them, were referable solely to what occurred between them, after Milner had acquired the land by the payment of his own money and for his own benefit; and if any obligations or duties existed at all, they grew out of this contract of bargain and sale then made by and between them.
The averments of the bill' as amended make a case for the declaration and execution of a resulting trust. The evidence, if that aspect of it most favorable to the complaint is to be taken as true, establishes a sale by Milner
Reversed and rendered.