Auten v. Sevier, 19965
| Decision Date | 20 November 1964 |
| Docket Number | No. 1,No. 19965,19965,1 |
| Citation | 202 N.E.2d 274,136 Ind.App. 434 |
| Parties | Betty Ann Schmett AUTEN, Appellant, v. William R. SEVIER and Anna Delores Sevier, Appellees |
| Court | Indiana Appellate Court |
John D. Clouse, Evansville, for appellant.
Loren G. McGregor, Princeton, for appellees.
This appeal comes to us from a judgment of the Posey Circuit Court against the appellant, plaintiff below Betty Ann Schmett Auten, in an action to establish a resulting trust upon real estate held by the appellees, William R. Sevier and Anna Delores Sevier.
The first paragraph of appellees' answer was by way of a general denial and the second and third paragraphs of appellee's, William R. Sevier, answer was a counterclaim for certain expenditures for room and board claimed due from appellant. Appellant filed a motion to strike certain parts of the second paragraph of answer which was sustained, and a motion to strike out the entire pleading entitled third paragraph of answer which [136 INDAPP 437] was overruled. Appellant filed a partial demurrer to the second and third paragraphs which was overruled, after which ruling the appellant filed a reply to the second and third paragraphs of answer.
Trial was by the court and judgment was entered against the appellant on her amended complaint and against the appellee, William R. Sevier on his second and third paragraphs of answer and costs were granted the appellees.
The record shows that the facts, concisely stated, are as follows: the appellant, the the sister of the appellee, Anna Delores Sevier, came to live with the appellees in the early part of 1954 in a house which the appellees rented, and continued to live with them until March of 1960. During the first year of her stay the appellant did not pay for her room and board. There seems to be some conflict in the evidence as to how the amounts were given but it appears that the appellant, a minor at the time, loaned the appellees the sum of $1,500.00 to build or to buy a home. On April 4, 1955, appellees purchased as tenants by entirety the home which they had rented, using the $1,500.00 of appellant as a down payment. On April 18, 1955, appellee, William R. Sevier, executed an agreement with the appellant which is plaintiff's exhibit number 2 and the pertinent parts of which read as follows:
'We the undersigned WILLIAM R. SEVIER AND BETTY AN SCHMETT have entered into a partnership which pertains to the piece of property of which the description follows:'
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'We as individuals half owners may at any time purchase or sell to the other partner the remaining half. Either partner purchasing the other half shall pay the seller all of his or her equity. 'We the undersigned have agreed to this contract.'
[136 INDAPP 438] After the purchase of the house appellees made various expenditures for maintenance, repairs and remodeling with the appellant's knowledge. Appellant contributed various sums of money to the appellees after this time, the appellant contending that said payments were for the purchase of the home and the appellees contending that the money was given as payment for room and board. The appellant argues that the $1,500.00 given to the appellees and the weekly payments made thereafter totaling some $3,433.97, including the $1,500.00, were given as payment for one-half interest in the house and claims such interest by way of a resulting trust created by oral agreement with the appellees made prior to the purchase and evidenced by the instrument subsequently executed on April 18, 1955. Appellees contend that the $1,500.00 was merely a loan.
The issues were formed by the appellant's amended complaint to which appellees filed a motion to make more specific and a motion to strike which was overruled. Appellees then filed a demurrer which was also overruled and answer was then filed by the appellees in three paragraphs, filed in compliance with Rule 1-3 of the Supreme Court of Indiana.
Appellant filed a motion for new trial which motion was overruled and which ruling the appellant assigns as error.
The appellant urges seven causes in support of her assignment of error. Number one that the decision of the court is contrary to law and numbers 2, 3, 4, 5 and 7 error of law in the exclusion or admission of certain testimony as evidence at the trial. Number 6 that the court erred in admitting evidence of the defendant as rebuttal evidence after the plaintiff and defendant had presented their cases and rested.
[136 INDAPP 439] Cause number 1, the decision of the court is contrary to law, presents to this court the responsibility of determining whether or not, giving effect to the evidence most favorable to the appellee and all reasonable inferences to be drawn therefrom, reasonable minded men could not have arrived at the same conclusion. Pokraka et al. v. Lummus Company (1952), 230 Ind. 523, 104 N.E.2d 669.
While it is true that resulting trusts are recognized in Indiana, Sec. 33-407 Burns, 1949 Replacement, the essential elements necessary to give rise to such a trust under appellant's theory are set forth in Sec. 56-608 Burns, 1961 Replacement, and in order for the appellant's theory to succeed each of these elements must be present. Hadley v. Kays (1951), 121 Ind.App. 112, 98 N.E.2d 237; Koehler v. Koehler (1919), 75 Ind.App. 510, 121 N.E. 450. Those elements are: 1. there must be an agreement between the parties conforming to the requirements of clause number 3, Sec. 56-608 Burns, 1961 Replacement; 2. the agreement must have been made before the title to the real estate was acquired; 3. there must have been valuable consideration; 4. the transaction must have been free from fraud; 5. the proof must be clear and unequivocal; 6. the agreement must be fair. Bullerdick v. Miller (1926), 85 Ind.App. 369, 152 N.E. 280; Koehler v. Koehler, supra.
The appellant argues that the agreement executed on the 18th day of April, 1955, is undisputed evidence of an agreement between the appellant and the appellees proving a previous oral agreement between the parties and giving rise to a resulting trust, thereby satisfying the first requirement. Many authorities are cited by appellant giving the rule governing the treatment to be given [136 INDAPP 440] to undisputed facts on appeal. We agree with the law stated but we find that the only undisputed fact established by the instrument is that the instrument itself was executed and signed by the appellant and the appellee, William R. Sevier.
It has long been the accepted rule, that a resulting trust, if it arises at all, arises at the inception of title. Its existence depends entirely upon the transaction as it occurred up to that time, and it cannot be changed by any subsequent transaction except as such subsequent transaction may throw light upon the original. Schwab v. Schwab (1955), 130 Ind.App. 108, 162 N.E.2d 329. Therefore if a resulting trust arose, the elements necessary for its existence must have been present before title was conveyed. The appellee contends that since title to the realty in question was taken by the entireties, the appellant had the burden of proving by a fair preponderance of the evidence that both appellees made such an agreement in order for the trust to arise. With this contention we cannot agree. As has been stated above, one of the essential requirements necessary under Sec. 56-608 Burns, 1961 Replacement is that the agreement must have been made either before or at the time of the execution of the conveyance. Hadley v. Kays, supra. If such an agreement existed, it mattered not in whose name title was taken, the trust would have arisen and appellant's interest become vested before title was perfected. The mere entry of another name upon a deed would not defeat it.
The real question for our consideration then, is whether there was sufficient evidence advanced by the appellant of an oral agreement creating a trust that, as a matter of law, the lower court erred in concluding that no resulting trust arose.
[136 INDAPP 441] The rule is well established that parol evidence of the facts giving rise to a trust is admissible, Schwab v. Schwab, supra, but such evidence must be...
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Criss v. Bitzegaio
...for the party paying the purchase-money or some part thereof. The elements of a resulting trust were set forth in Auten v. Sevier, (1964) 136 Ind.App. 434, 202 N.E.2d 274: there must be clear and unequivocal proof of (a) a fair agreement between the parties, (b) made for valuable considerat......
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...type here in question is a purchase money resulting trust. The elements which must be established were set forth in Auten v. Sevier, (1964) 136 Ind.App. 434, 202 N.E.2d 274. There must be clear and unequivocal proof of (a) a fair agreement between the parties, (b) made for valuable consider......
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...the statute, in each instance, presupposes the furnishing of money by one party and title vesting in another. In Auten v. Sevier, (1964) 136 Ind.App. 434, 202 N.E.2d 274, the court set forth the following requirements to establish a resulting 1. An agreement between the parties conforming t......
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