74 Miss. 59 | Miss. | 1896
delivered the opinion of the court.
Appellant, who is the widow of Henderson Moore, exhibited this bill against the appellees, who are the children and grandchildren of Moore, seeking to establish a resulting trust in the tract of land described. The case made by the proof is this: Moore owned one tract of land, and his wife another. On February 11, 1882, he made an executory contract for the purchase of this land from Julius Weiss, paying him at that time $100, and executing his two notes, each for $107.50, payable, respectively, December 1, 1882, and December 1, 1883; the purchase price being $300, and the $15 excess in the two notes representing interest, and, at that date (February 11, 1882), received from Simon E. Marx (Julius Weiss’ agent) a written paper acknowledging receipt of the $100 and the two notes aforesaid, and stating the terms of the executory contract of sale. Moore and his wife were negroes, living in Claiborne county. Miss., and Julius Weiss was a resident of New Orleans, La. After the payment of the $100, Moore was stricken with rheumatism, and determined to forfeit the $100 and entirely abandon his contract of purchase. His wife, the appellant, was then, by agreement between them, substituted in his place as the purchaser of the land, and she was to pay the two notes, and a deed to the whole tract was to be made to her. Weiss was not informed of this change as to the purchaser. The wife did pay the two notes, but Weiss made the deed to Henderson, and mailed it to him, the deed being executed June 3, 1884. Moore, upon receipt of the deed, and afterwards, fully
It will be observed that the rights of third parties are not here involved. The paper of February 11, 1882, was not a deed. It was a mere receipt and executory contract fQr the sale of the land. Weiss himself says that it was a receipt for cash and two notes for purchase of the land, but no deed was to be made till the notes were paid. It must be noted that it was intended by both Henderson and his wife that the deed should be made to her to the whole of the land, and its not being so made was not due to any secret violation of fiduciary duty by Henderson — -not due, in any sense, to fraud. Had it been, there would have been a case of constructive, not resulting, trust. 2 Pom. Eq. Jur., sec. 1031, note 3; Beach, Mod. Eq. Jur., §215. It was due wholly to mistake, the parties living in different states. '
The very able counsel for appellees insist that the payments by the wife were made after the purchase, and hence that no resulting trust arose, and quote 10 Am. & Eng. Enc. L., as follows: “ In order to establish a resulting trust, it is necessary that the party paying the purchase money should have actually paid it, as his own, as a part of the original transaction.” Counsel overlooked the last part of the sentence quoted, “at or before the time of the conveyance. ’ ’ The question is, what is meant, when it is sometimes loosely said that the consideration must be paid at or before the time of the purchase, by the phrase “the time of the purchase?”
We think the authorities clearly show that, in the case of an executory contract of purchase, where part is paid, and there are deferred installments of consideration to be met, that £ £ the time of purchase” means, within the rule we are discussing,
The same doctrine precisely is laid down by Pomeroy. 2 Pom. Eq. Jur., sec. 1037; Mosteller v. Mosteller, 40 Kan., 658; Murry v. Sell, 23 W. Va., 475 (where the court say that while ‘‘ a resulting trust cannot be raised by matter ex post facto,” nevertheless, “until the purchase money is paid, and the conveyance executed, the contract is merely executory, and the vendor, in law, is still the owner of the lands,” and this was a case where A first made an executory contract for the purchase of land, and, afterwards, before the purchase money was paid or the conveyance was executed, he agreed with B that, if he would enter into the purchase, and pay half, he should have half the land, and B complied, and the title was taken in A’s name); Gilchrist v. Brown, 165 Pa. St., 275; Rogers v. Murray, 3 Paige’s Chy., p. 397 (where the court say: “After the legal title has once passed to the grantee by the deed, it is impossible to raise a
A careful analysis of our decisions upon this subject, attention being had to the facts of the cases, will show that they are in perfect harmony with this rule. • Indeed, in Alexander v. McCarroll, 48 Miss., at page 136, the rule is announced in these very terms. Say the court: “If a trust results at all, it must be at the time when the conveyance is made. ” But there Mrs. Alexander’s $1,000 were used to pay the last of four annual installments, long after the “ conveyance” had been executed to the husband, February 12, 1847; and in Harvey v. Ledbetter, 48 Miss., page 95, where the trust was established, the purchase money was paid, and the conveyance then made, at the time of the sale by the administrator de bonis non. And in Brooks v. Shelton, 54 Miss., 353, on this particular point, it clearly appeared that, ‘ ‘ in every instance, the real estate was bought, wholly or partially, on a credit, the notes of the husband having been given, and subsequently liquidated with the wife’s means,” and that the conveyances were all made when the sales occurred, and long before the liquidation of said notes.
In Mahorner v. Harrison, 13 Smed. & M., 53, it clearly appeared (see pages 64, 65) that “the southeast quarter of section 33,” the land as to which the trust was not established,
In Bowman v. O'Reilly, 31 Miss., 261, it was sought to establish a resulting trust in favor of the heirs of Philip O’Reilly, on the ground that his brother, Nicholas O’Reilly, had bought the land with Philip’s money. The court held that it was not shown that the money “was paid by the individual means of Philip O’Reilly,” and that, if it had been, it would have presented the ‘ ‘ case merely of a purchaser who had used the means of another in purchasing lands for himself, which, though it would have rendered him a general debtor for the money used, would have created no lien upon the property purchased in favor of the person whose money had been used” — a case clearly, on the hypothesis stated, of a loan, not of one where the beneficial ownership of the land was, or was intended to have been, but in the person whose money was used. And in this case, also, it is clearly shown that the sale was on a credit to Nicholas O’Reilly, and the deed executed at the time of the sale.
In Gee v. Gee, 32 Miss., 190, it is expressly shown (page 191) that the father, the complainant, became surety for his son, A. L. Gee, on the note for the purchase money, but that the father never paid the money, as such surety, till some time after the conveyance, which was executed at the time of the sale to A. L. Gee. Gibson v. Foote, 40 Miss., 788, like the recent case of Applewhite v. Hitt, MS. op., was plainly stated to be the case of a loan. The husband “borrowed” the money of the wife, and purchased the land for himself. The court say: “The agreement to pay interest clearly shows that it was contemplated he should use the money on his own account. ’ ’ It thus manifestly appears that in all these cases
In the case of Blodgett v. Hildreth, 103 Mass., 484, part of the consideration was paid before and several installments of it after the conveyance was executed, and that court (one of the ablest in the Union) held that the payment after the conveyance did not defeat the trust, the court saying (page 487): “ It need not be money paid or advanced at the time of the conveyance. The mode, time and form in which the consideration was rendered are immaterial, provided they were in pursuance of the contract of purchase. It is sufficient if that which in fact formed the consideration of the deed moved from the party for whom the trust is claimed to exist, or was furnished in her behalf or upon her credit.” We do not cite this case to approve it, but simply to show that a court of the highest ability has pushed the rule far beyond the necessities of this case.
But it may be well to .note another striking phase of this case, differentiating it wholly from any of our decisions, but analogizing it strongly to the case of Murry v. Sell, supra, and that is this: That here, indisputably, the “transaction ” which is the “original” one, as to the arising of this resulting trust on the facts of this record, was the transaction wherein Henderson Moore abandoned his “interest of purchase,” and whereby his wife became the purchaser. Henderson gave up his contract — abandoned it — and had no further interest in the matter. Had matters remained thus, his payment would clearly have gone for nothing. Then, his contract of purchase having
Reversed, and decree here.