Powell v. Chastain

• Decision Date: 26 November 1957
• Docket Number: No. 37687,37687
• Citation: 318 P.2d 859
• Parties: Clarence H. POWELL, Plaintiff in Error, v. Henry CHASTAIN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 859

318 P.2d 859

1957 OK 298

Clarence H. POWELL, Plaintiff in Error, v. Henry CHASTAIN, Defendant in Error.

No. 37687.

Supreme Court of Oklahoma.

Nov. 26, 1957.

Syllabus by the Court.

1. An objection to the introduction of any evidence is equivalent to a demurrer to the petition.

2. While it is well established that if one can be induced to confide in the promise of another that the latter will hold in trust or will so purchase for one or both, and is thus led to do what otherwise he would have forborne or to forbear what he contemplated doing in the acquisition of an estate whereby the promisor becomes the holder of the legal title, an attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio, it is equally well settled that a simple avowal of acquisition for the use of another, without more, whether made contemporaneously with or subsequent to the fact, will not of itself support an allegation of trust.

3. In order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal; there must be an element of positive fraud accompanying the promise and by means of which the acquisition of the legal title is wrongfully consummated.

4. Petition which merely alleges breach of oral agreement to purchase land for the joint benefit of the parties to the agreement, but which contains no allegation that plaintiff was induced to confide in promise of defendant that he would purchase the land for both, no allegation that plaintiff was thus led to do what otherwise he would have forborne or to forbear what he contemplated doing in the acquisition of such land, no allegation of payment, obligation to pay, or other consideration, and no allegation of fraud or abuse of confidence, does not state cause of action.

Appeal from the District Court of Haskell County; Clyde W. Followell, Judge.

Action for breach of oral agreement to purchase land for joint benefit of parties in which the court sustained an objection to the introduction of any evidence and dismissed the action. Plaintiff appeals. Affirmed.

Guy A. Curry, Stigler, Bonds & Langley, Muskogee, for plaintiff in error.

Bob Perdue, Wilburton, and M. C. Spradling, Tulsa, for defendant in error.

WILLIAMS, Justice.

This action was brought by Clarence H. Powell, hereinafter referred to as plaintiff, against Henry Chastain, hereinafter referred to as defendant, to recover an undivided one-half interest in and to certain described lands situated in Haskell County, Oklahoma.

The trial court sustained an objection to the introduction of any testimony on behalf of plaintiff for the reason that the petition and the facts therein contained wholly failed to state a cause of action in favor of the plaintiff and against the defendant, and when plaintiff did not elect to amend his petition, the court dismissed the action. Plaintiff has perfected this appeal, and contends that the court erred in sustaining the objection to the introduction of any testimony and in dismissing plaintiff's petition.

The petition filed by plaintiff alleges that plaintiff and defendant entered into an oral agreement providing that the plaintiff and defendant should jointly purchase certain described lands; that defendant should supply the consideration therefor and that said lands should be owned and held by both plaintiff and defendant as tenants in common, until a satisfactory sale of same could be made, acceptable to both parties; that out of the proceeds of the sale of the said land the defendant should be reimbursed for the sums paid therefor and the remainder divided between the parties in equal shares; that on May 23, 1955, unknown to the plaintiff, the defendant purchased the land in question from the then owners thereof, taking title thereto in his own name by two deeds, which were recorded; that since the purchase of said lands and the recordation of said deeds defendant has denied and continues to deny that plaintiff has any right, title or interest therein, but asserts sole ownership in himself, to the exclusion of plaintiff. Such petition then prays that plaintiff have judgment against the defendant, finding and decreeing the plaintiff to be the owner of an undivided one-half interest in and to said lands and that defendant be decreed to hold the title to said lands in trust for plaintiff and defendant as tenants in common thereof.

Defendant filed a motion to require plaintiff to make the petition more definite and certain by stating the substance of the alleged oral agreement and to particularly state what functions plaintiff was to perform with reference to the purchase of the lands involved. Defendant also filed a demurrer to such petition. Plaintiff resisted both the motion to make more definite and certain and the demurrer, and both were overruled by the court with exceptions allowed to defendant. Defendant then filed an answer denying the allegations of the petition and affirmatively asserting the failure of the petition to state a cause of action. When the case was called for trial, defendant again asserted the failure of the petition to state a cause of action and the bar of the statute of frauds by objecting to the introduction of any testimony on behalf of plaintiff. The court sustained such motion, but offered to allow plaintiff to amend his petition so as to state a cause of action, which plaintiff refused to do. The court then dismissed the petition.

An objection to the introduction of any evidence is equivalent to a demurrer to the petition. S. J. Groves & Sons Co. v. Oklahoma City, 191 Okl. 276, 129 P.2d 185; Schmeusser v. Schmeusser, 181 Okl. 18, 72 P.2d 378. The question to be determined, then, is whether plaintiff's petition is sufficient to state a cause of action.

Plaintiff cites Preston v. Ross, 201 Okl. 455, 207 P.2d 297, Johnson v. Johnson, 201 Okl. 268, 205 P.2d 314, Nicklas v. Crowell, 205 Okl. 432, 238 P.2d 347, Gaines v. Gaines, 207 Okl. 619, 251 P.2d 1044, and Poe v. Poe, 208 Okl. 406, 256 P.2d 153, and argues that in each of the above cases this court, in construing similar transactions, held that constructive or resulting trusts may be established by parol evidence and, furthermore, that such contracts or agreements are not within the statute of frauds. The above cases cited by plaintiff are indeed authority for the proposition that a constructive or resulting trust may be established by parol evidence, and since such trusts arise by operation of law without the necessity of writing, they are not within the statute of frauds. Such cases do not however, determine the question of whether plaintiff's petition herein states a cause of action, which is the question presented by this appeal.

60 O.S.1951 § 136 provides, in effect, that no trust in relation to real property is valid unless created or declared by a written instrument, except those trusts created by operation of law. Trusts created by operation of law are generally referred to as implied trusts, and are of two species, 'res...