Barger v. Barger

• Decision Date: 18 January 1897
• Citation: 47 P. 702,30 Or. 268
• Parties: BARGER v. BARGER et al.
• Court: Oregon Supreme Court

47 P. 702

30 Or. 268

BARGER v. BARGER et al.

Supreme Court of Oregon

January 18, 1897

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Action by Rebecca J. Barger against Cyrus W. Barger and others to compel a conveyance of land. From a judgment confirming the report of a referee and dismissing the complaint, plaintiff appeals. Affirmed.

C.M. Idleman and W.P. Lord, for appellant.

W.Y Masters, J.B. Cleland, and J.C. Moreland, for respondents.

WOLVERTON J.

This suit was instituted November 1, 1894, for the purpose of charging the defendants Cyrus W. Barger and Eliza Helm as trustees of certain lands in Multnomah county, Or., for the use and benefit of plaintiff. From the testimony it appears the plaintiff was the wife of John Barger, now deceased, and that Cyrus W. Barger and Eliza Helm are their children. Barger left a will by which he devised and bequeathed to plaintiff all his real and personal property for and during her natural life, or so long as she remained his widow, but in case of her marriage, then a one-third interest absolute in such property. Subject to this provision, the property went to the children in equal portions. The plaintiff and her husband settled in Marion county, near Silverton, in 1847 upon a tract of land entered by them as a donation claim upon which they lived until 1864. In the meantime Barger was engaged in mining in California and Idaho, in freighting from the Willamette valley to the mines in Eastern Oregon and Idaho, and in the flouring-mill business at Silverton. He made and lost money in these enterprises, but it is now impossible to tell what was the net result. A house and some lots in Salem, purchased by him while thus engaged, remain as part of the assets of his estate, and were appraised as such at $1,000. The consideration named in the deed. however, is $4,005, but it is highly improbable that they were worth that amount, and it is difficult to determine from the evidence what their real value was when purchased. In the early part of 1866 the plaintiff and her husband sold their donation land claim, or, rather, what remained of it, for $2,000. With the funds derived from this source, Barger purchased an interest in a ferry at Salem. Whether he invested other funds with it is by no means certain. He operated the ferry until September, 1867, when he sold out. The sum realized is put by witnesses at from $2,500 to $4,500. Out of these funds, Barger paid a note which James Smith, the father of plaintiff, held against him, for about $1,400. In the spring of 1868 he purchased about 115 head of cattle, at a cost of something like $1,955, and borrowed $1,000 to enable him to pay for the same and defray the expenses of driving them to Eastern Washington. There is, however, some dispute as to the amount of this last loan, which was also had of James Smith. The defendant R.W. Helm, the husband of Eliza, bought cattle at the same time, and he and Barger took their families and cattle to Klickitat county, Washington territory, in July of that year. In 1869 Barger and Helm formed a partnership in the cattle business, each putting in his individual stock, and in the adjustment of such assets there was an excess due Helm of about $1,200. About February, 1871, they made a sale to Phelps & Wadleigh, out of which Barger realized, after payment of said excess, expenses, and debts incurred in the business, about $7,500. Two thousand dollars of this were applied in payment of a balance due on his note to Seth Smith, a brother of plaintiff, given some time previous to the purchase of the ferry. In June, 1871, Barger bought 10 acres of the land in dispute for $1,300, and in July the remaining 20 acres at a consideration of $3,100, and took deeds therefor in his own name. The funds from the sale of cattle being a little short of enough to pay for the two tracts and meet some other expenses, some few hundred dollars were borrowed from Jennings Smith, another brother of plaintiff. In 1872 Barger and his wife, having in the meantime left Klickitat, returned thereto, and made their home there until 1884, when Barger was adjudged insane, and the plaintiff was appointed his guardian. Her account in January, 1886, shows his estate in Washington to have been worth nearly $10,000. She takes credit therein for expenditures of $3,545.85, reports $3,322.82 on hand to be loaned, and values the real estate at $2,000. In 1865 Simeon Jennings, an uncle of the plaintiff, died in West Virginia, leaving a large estate to numerous relatives, and from this source and from her father's estate the plaintiff received a considerable sum of money, which was paid to her from time to time, ranging from the fall of 1867 down to a time subsequent to the purchase of the land in dispute by Barger. She claims to have received two payments, amounting to about $900, from her uncle's estate prior to the purchase of the cattle, which is probably correct; and, to establish the trust relations, she claims that one-half of the proceeds of the donation land claim was her money, and this, she testifies, was invested in the ferry by Barger, with her consent; that he expended in payment of his debts all the proceeds of the sale of the ferry, except $1,000, and that this sum, together with the $900 received from Simeon Jennings' estate, was at that time, with her consent, invested in the cattle; that no partnership ever existed in the cattle business between Barger and Helm; and that from the proceeds of the cattle, together with a small sum borrowed by Barger from her brother, the land in dispute was purchased, all with her consent. It is probable that her money repaid the amount borrowed by Barger with which to purchase the cattle; that it contributed in part to the expenses of the cattle business; was used to pay a considerable portion of the $3,000 note of Barger to her brother, Seth Smith, and to repay the money borrowed to make out the purchase price of the land. No other direct use of her money can be traced. In answer to interrogatories, she testified concerning the purchase of the cattle as follows: "Q. What was the agreement and understanding between you and your husband at that time? A. The understanding was this: It was my money, and I gave it to him to invest in cattle, hoping we might make a profit out of it, and he could get out of debt, and we could have something left for me. Q. Anything said about what interest he was to have in the cattle? A. No, sir; there was nothing said about it. Q. Anything said about your interest? A. Nothing. Q. Anything said about how he was to get any benefit out of it? A. Nothing. Q. Your idea was that the money was to be handled for the good of the family? A. It was more for the good of myself. Q. It was really to get Mr. Barger out of debt, and help the family along. A. I do not know whether there was anything said about that. We went up there partially on Willard's account. We thought, by buying cattle, it would give him a start, and something to do, and we might make something for ourselves." She further testified touching the purchase of the land: "Q. Was there anything said between you, or by you to him, about what kind of an investment you preferred to have? A. Yes; we talked that over, and he asked me what I wanted done with my money, and I said, 'The best thing is to first pay your debts,' and we can decide what to do with the remainder later on. After we went to the Waldo hills, where my brother Jennings Smith lived, we talked it over, and, before we left the Yakima country, I said 'it would be the best plan to put the money in the bank until we decide.' So part of the money was left in Portland, reserving enough to pay that debt to my brother Seth. *** We finally decided to buy some land, although land was high, but we thought it safer. He came to Portland, and he wanted me, very much, to come; but I did not feel very well, and did not feel able to ride on horseback that far. So he came down himself, and, with my permission, he bought one piece of land, although the land was very high." She relates that a similar conversation attended the second purchase.

In support of her claim, it was argued that Barger was practically bankrupt at the time he purchased the cattle, and testimony is adduced touching admissions made by him from time to time to that effect, and to the further purport that the money with which he bought the cattle and the land belonged to his wife. We have stated the case thus far as strongly for the plaintiff as the facts will admit. Her testimony is weakened somewhat by the fact that her husband's will received her approval when made, and by the further fact that in September, 1891, she instituted another suit to declare this trust, based at that time upon an alleged express agreement and understanding that the property so purchased in his name should inure to her sole use and benefit. Other circumstances might be enumerated, having the same tendency, to which it is not deemed important to refer. It is quite certain that the money borrowed by Barger from plaintiff's father was used in the purchase of the cattle, and it is likely that the balance of the purchase price was supplied from the unexpended ferry money, rather than from the funds received by plaintiff from her uncle's estate.

The plaintiff, by the present suit, seeks to establish what is claimed to be an implied trust, but it is not clear, from the contention of counsel, whether they regard it as a resulting or a constructive trust. Although often confused by the authorities, there is a marked distinction between the two and this case furnishes a fair illustration of the distinction. As is said in Thomas v. Standiford, 49 Md. 184, "There is, perhaps, no principle more clearly settled by numerous...