53 Ala. 120 | Ala. | 1875
It is a well established principle in courts of equity, that if a trustee invests the funds he holds in a fiduciary capacity, in the purchase of lands, taking the conveyance of title in his own name, the cestui que trust may at his election, charge the trustee personally, or may follow the money into the land, and claim the purchase as having been made for him. The principle applies when a purchase is made by a husband, with the proceeds or accumulations of the wife’s separate estate. 1 'White & Tudor’s leading cases, 277-8; Perry on Trusts, § 127. If a part only of the purchase money is paid with trust funds, a resulting trust will be created to the extent of,,the payment; or the cestui que trust may charge the lands with the repayment to him of the sum so paid.
To create the equity either to charge the lands, or to raise a resulting trust, a payment of the trust funds at the time of the purchase is indispensable. A subsequent payment by the trustee of the debt he may have contracted in the purchase of the lands, will not by relation attach any trust or lien to the original purchase. The whole theory of a resulting trust, or of the equity of the cestui que trust to follow trust funds into real estate or other property, arises out of the circumstance, that the trust funds, at the time of the purchase, formed its consideration. 1 White & Tudor’s Lead. Cases, 275; Jackson v Moore, 6 Cow. 726; Boyd v. McLean, 1 Johns, Ch. 590; Bottsford v. Burr, 2 Ib. 414; Steere v. Steere, 5 Ib. 20; Foster v. Trustees of Athenaeum, 2 Ala. 302. The trust funds being employed in the purchase, when it is made, it is a mere conversion of them into another species of property. From such conversion the trustee cannot claim any benefit, or that they are thereby divested of the trust originally impressed upon them. 2 Story’s Eq. § 1258.
To raise a resulting trust in real estate, or to establish an equity to charge it, resting merely in parol, and in opposition to the written evidence of title, clear and convincing evidence is required. Boyd v. McLean, supra; Bottsford v. Burr, supra; Steere v. Steere, supra; Lench v. Lench, 10 Vesey, 517; Baker v. Vining, 30 Maine, 121. The principle in its entirety had no other foundation than that the trust funds formed the consideration of the purchase, in whole or in part. This fact must not be left in doubt and uncertainty, either as to the character, or amount of the funds employed. If the fact is doubtful or uncertain, in either respect, the written evidence of title must prevail.
If the facts of this case are, as alleged by conrplainant, it
The equity of the appellant, would be to charge the premises with so much of her separate money as was employed in the purchase and formed a part of its consideration when it was made; and so much of her separate moneys as were used in making the improvements. There is not evidence on which she can sustain any claim to the goods her husband had at Eutaw, and carried to Birmingham. She avers that they were hers, and that her husband was selling
Under this state of facts, the evidence of the equity the appellant asserts is not clear and convincing. The clerk who was in Birmingham, engaged in transacting the business of the husband, had better opportunities of knowing the source from which payments for the improvements were made than appellant could have. She was residing in Eutaw, and as she states, her only opportunities for knowing anything about the improvements, were from the declarations of her husband. When the declarations were made, whether before or after the making of the mortgage under which the appellees claim, is not shown. If made after the mortgages, they are not admissible as evidence. Whenever they may have been made, they are subject to the observations of the Master of the Rolls, in Lench v. Lench, supra, “in all cases most unsatisfactory evidence, on "account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.” See also Garrett v. Garrett, 29 Ala. 439. There seems to us special danger, in resting such an equity on the uncoroborated declarations of a husband made to his wife, in the privacy of domestic life. Less deliberation and care would be observed by him, than he would be expected to observe in declarations to another, to whom he was not bound by the ties existing between him and his wife, and to whom such unlimited confidence would not be extended, as to the wife. A fact not without its importance, is, that the appellant joined her husband in the mortgage to the appellees, without disclosing that she had any interest in, or claim to the premises; nor did she ever assert any claim to them, until it was certain they must be sold in satisfaction of the mortgages.
If the equity of the appellant exists it was capable of clear and convincing proof. Lapse of time had not involved
We concur in the opinion of the chancellor, that the claim of the appellant is not supported by the evidence, and the decree must be affirmed.