138 Ind. 228 | Ind. | 1894
The appellee Lennie C. Wendling filed her complaint in the court below, for partition of certain real estate, making defendants therein the appellant, Caroline Toney, and the appelleés Milford Toney, Iiarry Toney, Albert Toney, and Ulysses Toney.
On the 9th day of November, 1892, the appellant filed her cross-complaint in the said action, making defendants therein the appellees, all of whom were minors, with the exception of Lennie C. Wendling. The court appointed David D. Fickle, Esq., an attorney at law of the Cass Circuit Court, as their guardian ad litem,, who accepted the appointment and qualified according to law. The appellee Wendling filed a separate demurrer to each paragraph of the appellant’s cross-complaint, and the guardian ad litem, filed a separate demurrer for the minors to each paragraph thereof. The demurrers alleged, 'as a cause, that neither paragraph of the • cross-complaint stated facts sufficient to constitute a cause of action. The
In the second paragraph of her cross-complaint, appellant alleges, in substance,' that she and the appellees were the owners in fee-simple, as tenants in common, of certain real estate described therein, and that they derived title to said real estate by inheritance from Samuel S. Toney, deceased, who was the father of the appellees and the husband of the appellant, and that in the year 1868, when appellant and Samuel S. Toney were married, the appellant became possessed, in her own right, of* a separate estate in the sum of five hundred dollars in money, derived from the estate of her deceased father, and, at the request of her husband, Samuel S. Toney, appellant deposited with him the said sum of five hundred dollars, to be kept ,by him for appellant; that after her husband had received said sum of money into his custody, he took the same and used it in paying a part of the purchase-money in order to enable him to acquire title and ownership in and to the real estate described in her cross-complaint; that said sum of money was never repaid to appellant, and her husband died intestate in the year 1891, leaving surviving him as his only heirs at law the appellant and the appellees herein, and she asks, in her cross-complaint, to have a lien declared upon the lands to be partitioned, for the said sum of money, with interest, and alleges that the personal estate of the decedent is insufficient to pay such demand. She also alleges that, in addition to said lien, she is the owner in fee-simple of the undivided one-third of the real estate described therein, and that the appellees each own the undivided two-fifteenths of said land, subject to the lien and interest of the appellant, as aforesaid. The appel
This paragraph of the cross-complaint is drawn upon the theory that, by reason of the acts and dealings of the appellant and her deceased husband, Samuel S. Toney., a trust resulted in her favor in a part of the lands of which he died seized, and, by reason of this fact, she is entitled to have a lien declared upon the lands in her favor, to the extent of the amount of money she deposited with the husband, which he used in its purchase, with interest thereon.
Under the common law rule, the wife’s personal estate once reduced to the possession of the husband became liis, and no trust could result from its investment in land. Ream v. Karnes, 90 Ind. 167 (172), and cases cited.
But it is now the established law of this State that “The personal property of the wife held by her at the time of her marriage, or acquired, during coverture, by descent, devise, or gift, shall remain her own property to the same extent and under the same rules as her. real estate so remains,” etc. R. S. 1881, section 2488; Burns’ Rev. 1894, section 2649.
In Armacost, Admr., v. Lindley, Admr., 116 Ind. 295, this court held that where a husband, at his own suggestion or request, obtained the title or possession of his wife’s separate property, which, the statute declares, shall remain her own, even though the possession be obtained with her consent, unless the facts and circumstances show an agreement, or intention on the part of the wife that her husband shall receive it as a gift, the law will presume that he took it as her agent or trustee.
In this case, under the allegations of the cross-complaint, showing that the wife at one time had dominion
In our opinion there can be no question but that in this •case, under the facts stated in the cross-complaint, and in the light of the decisions of this and other courts, the appellant’s husband, when he received her patrimonial estate from her, became charged as trustee of the money, and his heirs are liable to account, and such facts are sufficient to justify a judgment against his estate; but does it follow that the allegations are sufficient to show a resulting trust in the land in favor of the appellant? An implied trust is a mere creature of equity, founded upon presumptive intention and designed to carry that intention into effect — not to defeat it. If it is not the intention that the estate shall vest in him who pays the purchase-price, then no resulting trust in his favor attaches to the property. The trust can only arise from the original transaction at the time it takes place, and at no other time. The funds must be advanced and invested at the time the purchase is made. A resulting trust can
The law concerning resulting trusts in this State is fixed and controlled by statute. Section 2974, R. S. 1881 (Burns’ Rev. 1894, section 3396), reads: “When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.” The section following contains provisions concerning the rights of creditors.
Section 2976, R. S. 1881 (Burns’ Rev. 1894, section 3398), is as follows: “The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee, in violation of some trust, shall have purchased the land with moneys not his own; or where it shall be made to appear that, by agreement and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein, in trust .for the party paying the purchase-money or some part thereof.”
Under these sections a resulting trust will arise in three different classes of cases: First, where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid. Second, where such
In the case at bar it is not assumed that the cross-complaint contains any averment that brings the appellant’s claim within the terms of the first class specified in section 2976, supra, for it nowhere appears that the decedent took such conveyance in his own name without the consent of the wife from whom he received the the money, and we may indulge the presumption that the transaction was with her concurrence and approval. There is no claim or pretense that a resulting trust can be declared in favor of the wife, in the lands purchased by the husband, by reason of anything contained in the third class of cases, for it is not shown that by agreement, and without any fraudulent intent, the husband who received the conveyance, was to hold the land or any interest therein in trust for the wife, who alleges she paid a part of the purchase-money. But the appellant contends that her case is exactly in point under the second clause of the section which provides that if the alienee, in violation of some trust, purchases land with money not his own, and takes the title in his own name, a trust will arise in favor of the party paying the purchase-money or some part thereof. Under this clause, it is perfectly clear that if the alienee purchased the land with moneys not his own, this fact alone could create no resulting, presumptive or implied trust in favor of the person with whose money the consideration was paid. The provisions of this clause only extend to cases where the purchase shall have been made in violation of
Judgment affirmed, with costs.