124 Ala. 415 | Ala. | 1899
— The contention of the complainant is, that the trust in question Avas an express trust, having been declared in writing by Fannie A. Steele, who Avill be referred, to hereafter as the defendant, and signed by her so as to satisfy the requisitions of the statute of frauds; and, further, that it Avas a resulting trust, by reason of complainant having paid one-half of the
Section 1041 of the Code provides, that “No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing/ This court has Several times construed this statute, holding that it is a substantial re-enactment of the 7th and 8th sections of- the English statute of frauds, and has the same purpose,— “The requisition of Avritten evidence of trusts concerning lands and the prohibition of the enforcement of such trusts resting merely in parol, when they arise from the agreement of parties, and do not result from the implication or construction of laAV.” — Bailey v. Irwin, 72 Ala. 505; Patton v. Beecher, 62 Ala. 579. As Avas said in the case last cited, “All other trusts than such as arise or result by implication or construction of law, are Avithin its operation. Trusts arising or resulting by implication of laAV may be excluded by, but they do not arise from, nor are they dependent upon the agreement of the parties. From facts proved, Avithout any declaration or agreement of the parties, the law raises the trust. A common case, is Avhen A. purchases lands with the money of B., taking the conveyance of title to himself, the law implies a trust of the title for B.”
It is perhaps unnecessary in this case, to discuss the question, whether under the pleadings and proofs, the trust here sought to be set up in favor of complainant, is a trust concerning lands not resulting by implication or construction of law, such as is defined in the section of the Code above quoted. The complaiant insists, that the facts in the case fully establish a trust under that section of the Code, but whether it does or not, can make
It is well understood, that a resulting trust arises by operation of law, in favor of him who advances the purchase money for land, though the title be taken in the name of another; and when two or more persons together advance the price, and the title is taken in the name of one of them, a trust will result in favor of the other, with respect to a share of the property, in proportion to the consideration advanced or paid by him. — Anthe v. Heide, 85 Ala. 236; Bates v. Kelly, 80 Ala. 142; Lewis v. M. M. B. & L. Asso., 70 Ala. 276; 3 Brick, Dig. 785, § § 47, 48.
Mr. Pomeroy defines resulting trusts to be such as “arise when the legal estate is disposed of or acquired, not fraudulently or in the Adulation of any fiduciary duty, but the intent and theory of equity appears or is inferred.or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such a case a trust “results” in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity decrees to be the real oArner.” — 1 Pom. Eq., § 155; 2 Ib., §§ 1030-1038; Lee v. Browder, 51 Ala. 288; Lehman v. Lewis, 62 Ala. 129; O’Bear Jewelry Co. v. Volfer, 106 Ala. 205, 215-218. In the case of Lee v. Browder, supra, it Avas said: “The authorities are uniform, and have definitely settled, that the trust of the legal estate, whether it is of freehold or of leasehold, results to him who advances the purchase money, without regard to the person in Avhose name title is taken. It is said by Judge story, that the principle has its origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money, means the purchase for .his oavu benefit, rather than that for another; and that the conveyance in the name of the latter is a matter of convenience and arrangement between the parties for some collateral purpose.’’ — 2 Story’s Eq. 1201. The trust arises by operation or implication of
From the foregoing principles, it is of easy deduction, that if there was an understanding between complainant and defendant for the purchase on joint account of the First Avenue lot, and, as the undisputed facts show, the same was purchased by defendant, taking a bond for titles from the vendor in her name, and afterwards, Avhen the purchase money was all paid, she received from the seller a conveyance thereof in her own name and the complairiant as he insists had furnished his share of the purchase money, and defendánt afterwards sold the lot at an adwance, then complainant would be entitled to his share of the money receiAred by defendant therefor, and she holds the same in trust for him, for which a court of equity Avill compel her to account.
The complainant says, that the defendant proposed to him to purchase the property in question on joint account, which proposition he finally agreed to; that there Avas a running account between him and her, and the payments made by him on account of the purchase price of the property and as appear in said account, Avere equal to or in excess of those made by defendant, except the last payment made on final settlement in full for the balance due on the purchase price, which balance Avas made without his knowledge on consent, and which Avas for his benefit as Avell as hers. The defendant admitting that she made a proposition to complainant to purchase the property for their joint benefit, says, that he declined the proposition, newer agreed to take any interest in the purchase and never made any payment on account thereof. The testimony of the complainant and defendant Avho are the main witnesses in the case, is in irreconcilable conflict.
In 1878, as it appears, defendant resided Avith her husband on a farm OAvned by him in Green county. She continued to reside thereon Avith her several children,
At the time defendant moved to Birmingham, the spirit of speculation in real estate was rife, and she caught it in no small degree. For the time at least, she met with encouraging success. She wrote many letters to complainant disclosing to him her purposes and schemes, and proposed do make investments in real estate for herself alone, for him alone, and for him and herself on joint account, and she bought on these several accounts. Out of one investment, referred to as the First Avenue property, the litigation on hand grows. He says it was made on their joint account, and she, that she made it alone for herself. She says she never even conferred with him about the purchase of this lot, before she actually purchased it for herself, and could, therefore, have had no prior agreement in reference to its purchase for him and herself jointly. But, in this she is evidently mistaken. In a letter to him, dated the 27th
On April 26th, 1883, she wrote: “Yours received yesterday. Every desirable lot for business or residence is so high that I haven’t ventured a purchase yet.” That language indicates that he had written to her in reference to a purchase, either on joint or on his individual account. She adds: “I do not intend to buy a lot for myself alone; I cannot see my way clear to do it, as I Avant to build on my corner lot during the summer. (This reference Avas to a lot she had bought for herself on.Avhich to build a residence.) I want so much to make an investment for you. I Avant to look well, so that you wi.llfind no room for disappointment;” and after stating a Mr. Going’s estimate of property on 1st Avenue, she asks, “Would you like to join me in such a purchase, or Avould you prefer going alone?” The complainant SAvears he Avrote consenting to the purchase on joint account, but the letter Avas not produced by defendant, and she denies having received it. However, eighteen days after the last letter Avas AAU’itten, on the 14th May, 1883, she Avrote again in reference to the same matter: “I..have been looking around for some time to see what could be done by Avay of investment. I have decided upon a 1st Ave. lot. It lies on the. corner of 21st Street and 1st Ave. It extends from 1st Are. to Morris Ave. 182 feet with 50 feet front, — r$5,000 cash, with $1,250 cash, and three years Avith.8 per cent. This is the very best that can be done at this time. This lot is offered by the Elyton Land Co.'* * * I consider you a partner in the transaction today. I will give the Elyton Land Co. a draft on you for the money (and this she afterwards did for $1,250,
On the 10th January, 1890, more than six years after' the purchase, she Avrote to complainant, “Today I have, after much hard work on the part of the agent, sold 25x 100 feet on corner of 1st Ave. and 21st Street, at- $.850 per foot. I tried aAvful hard to get $900 per foot, but couldn’t get it, because some others are holding their property so Ioav. The Steiners (JeAV Bankers) bought it. I shall have every tiling done right. Col. BroAvn Avill assist me, and he is very correct in business matters. * * * * i p0pe y0U will be pleased. I Avould have Avritten, if I had had time, but a man was urging another lot, and if we did anything, it had to be done at once.”
On the 22d of the same month she Avrites to him again, explaining Avhy she had not written earlier, and in; the letter she said: “On the next page I Avill give you a statement of the sale. It may astonish yo.u, but I have done the best I could, Avitli such a family on my hands.” Then folloAvs the statement, showing the purchase price,from Avhich she deducted the sum of $15,220.76, the amount of a mortgage indebtedness she had placed on .the property^ and fees, leaving in her hands only the sum of $6,012.17. * Of this mortgage, the complainant says he had never been informed, although it was recorded, and there is no evidence to show that he had been. He knew that they OAved a balance on the purchase) to the Elyton Land Company, amounting with' - in- - terest to about $5,000, Avhich would have to ' be paid, but he Avas surprised, that defendant had applied-, so great a part of the purchase money to her individual
If more were needed as to his interest in the property, it is found in the deposition of Mrs. Horton, a sister of defendant, who deposed, “Before the trouble between my sister and my brother, I had several conversations with her in which she admitted that he had an interest in her Birmingham property, and particularly in the lot at the corner of First Avenue and Twenty-first Street, and also, the Third Avenue property. I understood from her statements, in these conversations • that his interest in the property was a half interest.”
When it comes to the proof, as to what each paid, it is unnecessary to review it at length, since it is very voluminous. It clearly and satisfactorily appears, that he paid from the beginning his half of such payments as were made, if not more, and that the last payment of $5,000 was made by defendant Avitliout his knowledge, Avith money she states she raised by mortgage on the property. This payment as Ave have said enured to his benefit as Avell as to hers.
The complainant is clearly entitled to his undivided half interest in the proceeds arising from the sale of said property, which are held by defendant in trust for him, and has a lien thereon, and to a personal decree against her for the same, as the amount may, on a reference be ascertained. He is also entitled to one half of the decree obtained by defendant against the Mayor and Aldermen of Birmingham in his own right; and the same having arisen out of the property held in trust for complainant by defendant, he is entitled also to the other half thereof, and the same should be decreed to be paid to him, if necessary, and to the extent it may be found necessary for the payment of the amount due to com
The defendant Wm. Spencer, made claim to this decree by setting up in his answer that the same had been transferred to him for a valuable consideration by the said defendant, prior to the institution of this suit. He has, however, made no attempt to establish his claim and disappeared from the case after filing his answer, His claim, therefore, does not stand in the way of complainant’s assertion of his rights in said decree.
It is conceded by appellant, that it is unnecessary for the court to pass upon the validity of the transactions between defendant and J. H. Brown as to the other part -of said First Avenue property not sold to Steiner Brothers, and which constitutes the second branch of this case. Brown is dead, his estate insolvent, and the property is not worth the incumbrances to tona -fide purchasers he placed on it. The opinion and decree herein rendered are confined to that part of the cause which relates to the purchase and sale of the part of said property which was sold to said Steiner Brothers. It may be stated, however, for the bearing it has on the other branch of the case we have been considering, that defendant, without the knowledge of complainant, sold that part of the lot to said J. H. Brown, for some $22,500, and with his assistance, so managed, that complainant never received a dollar of his share of the money.
The garnishment of the American National Bank
The cross-bill of defendant is without equity and should be dismissed.
A decree will be here entered reversing the decree of the court below, and declaring the complainant entitled to one half of the proceeds of the lot in question which was sold by defendant Fannie A. Steele to Burghard and Sigfried Steiner, after deducting therefrom the sum remaining due to the Elyton Land Company for the purchase of said lot, paid to said company by defendant out of the proceeds of sale. It is further ordered that the register of said court proceed without delay, under the rules of the court applicable in such cases, to ascertain and report how much is due to complainant by the sáid Fannie'A. Steele on account of the excess of payments made on the purchase price of said lot by complainant, over and above what was paid thereon by the said Fannie A. Steele, and also what is due to complainant on account of the amount received by the said Fannie A. Steele for the sale of said lot to Burghard and Sigfried Steiner. He will make report herein to the next term of said chancery court of said county of Jefferson, for decree thereon, and for decree in the case, in conformity to the principles of the foregoing opinion of this court.
Beversed, rendered and remanded.