Barker v. Barker

• Decision Date: 14 May 1947
• Docket Number: 7046.
• Citation: 27 N.W.2d 576,75 N.D. 253
• Parties: BARKER v. BARKER.
• Court: North Dakota Supreme Court

27 N.W.2d 576

75 N.D. 253

BARKER v. BARKER.

No. 7046.

Supreme Court of North Dakota

May 14, 1947

Syllabus by the Court.

1. The legal obligations of a father for the maintenance of his minor children are not cancelled or terminated because a decree of divorce has been rendered awarding the custody of the children to the wife.

2. In this state the provisions of a decree of divorce relating to the maintenance of minor children remain subject to modification by the court from time to time.

3. The law recognizes that a relationship known as a 'confidential relation' may exist between the parties to a transaction, where by reason of kinship or professional business, social or family relations, 'confidence is naturally inspired or, in fact, reasonably exists.'

4. Ordinarily, and presumptively, a confidential relation exists between a husband and wife, and generally business transactions between them will be deemed to be within the rule of confidential relations.

5. A confidential relation is not confined to any specific association of parties but applies generally to all persons who are associated by any relation of trust and confidence. A confidential relation may exist between divorced persons with respect to transactions after the divorce involving matters relating to the maintenance of and provision for their minor children.

6. Fraud in equity includes all willful or intentional acts omissions, and concealments which involve a breach of either legal or equitable duty, trust, or confidence, and are injurious to another, or by which an undue or unconscientious advantage over another is obtained.

7. Where a person obtains the legal title to property by such arts or acts or circumstances of circumvention, imposition or fraud, or by virtue of a confidential relation and influence under such circumstances that he ought not according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial interest of the property, courts of equity, in order to administer justice between the parties, will raise a trust by construction out of such circumstances or relations; and this trust they will fasten upon the conscience of the offending party and will convert him into a trustee of the legal title, and order him to hold it or to execute the trust in such manner as to protect the rights of the defrauded party and promote the safety and interests of society.

8. In the instant case plaintiff and defendant were husband and wife. During their marriage two children were born,--a boy and a girl, both minors at the time this action was brought. Plaintiff and defendant were divorced by decree entered in July, 1940. The decree of divorce awarded the custody of the children to the plaintiff. In December, 1942 the parties entered into an oral agreement whereby defendant agreed to purchase a home for the plaintiff and the children. Such oral agreement provided that the defendant should make a down payment of $350, and that the plaintiff and the defendant should execute a promissory note for the balance of the purchase price, and a mortgage to secure payment of the note. Such agreement further provided that the defendant should make the monthly payments on such note, and that the title to the property should be taken in the name of both the plaintiff and the defendant. The property was purchased in December, 1942. Defendant made the down payment of $350, and the plaintiff and the defendant executed the note and mortgage in accordance with the agreement. The plaintiff entered into occupancy of the property with the children, and they have continued to reside there. In July, 1946, the plaintiff first learned that the deed for the property had not been taken in the name of both the plaintiff and the defendant as grantees, but had been taken in the name of the defendant as sole grantee, thus vesting the entire legal title in him. Upon learning this, plaintiff made demand upon the defendant that he convey the property so as to vest title in both the plaintiff and the defendant in accordance with the agreement. This he refused to do.

It is held, for reasons stated in the opinion: (1) That a confidential relation existed between the plaintiff and the defendant as to the transaction involving the acquisition of the home for the plaintiff and the minor children; (2) that the defendant abused such confidential relation and committed a fraud by taking a deed vesting title in himself alone; and (3) that as a consequence a trust was created by operation of law, and the defendant holds title to the property in trust.

Lanier & Lanier, of Fargo, for appellant.

Harry Lashkowitz, of Fargo, for respondent.

CHRISTIANSON Chief Justice.

The sole question presented for determination on this appeal is whether the complaint states facts sufficient to constitute a cause of action. The complaint alleges:

'1. That the plaintiff and the defendant both are citizens of the United States of America; that plaintiff is a resident and citizen of the state of North Dakota; that defendant is a resident and citizen of the state of Nevada.

'2. That defendant is not a member of the armed forces of the United States of America.

'3. That formerly, plaintiff and defendant were husband and wife; that two children were born as the issue of said marriage, a boy, Robert Lyle, and a girl, Delphine Coralie; that under Judgment and Decree of this Court, dated the 27th day of July, 1940, filed and of record in the office of the Clerk of Court for Cass County, North Dakota, a divorce was granted to the parties herein, and the custody of the said minor children given to plaintiff herein.

'4. That shortly after the entry of said Judgment and Decree, and on the 16th day of December, 1942, defendant agreed to purchase a home for plaintiff and the two minor children; that it was understood and agreed by and between plaintiff and defendant that defendant was to make the down payment of three hundred and fifty dollars ($350.00); it was further understood and agreed that plaintiff and defendant were both to sign the note for the deferred payment of the property and the mortgage to secure said deferred payments; it was further agreed that defendant was to make said payments each month as they became due; it was further understood and agreed that the title to said property would be in the name of both plaintiff and defendant.

'5. That pursuant to said agreement, and on the 16th day of December, 1942, plaintiff and defendant did purchase said home, described as follows, to wit: * * * (Here follows legal description of premises).

'6. That at the purchase of said property, defendant did pay the three hundred and fifty dollars ($350.00) down payment; that plaintiff and defendant were and are co-signers on the note for the balance of the purchase price; that plaintiff and defendant were and are co-signers on the mortgage to secure the payment of the balance of the purchase price.

'7. That in absolute violation of the agreement between the parties and totally unbeknown to plaintiff the Executor's Deed transferring title to said property ran solely to the defendant, Leslie D. Barker; that defendant by taking title in himself alone, gained said title by fraud and violation of trust.

'8. That since the purchase of said property, plaintiff and the two minor children have continuously lived in and are now living in the house situated on said property; that defendant, in violation of his agreement, has totally failed to keep up the payments on said home and has made no payments thereon; that defendant now threatens to sell said property; that the first time plaintiff had any notice or knowledge that the title to said property was not held jointly by both her and defendant was in July, 1946; that since so learning, plaintiff has demanded of defendant that he convey said property to both plaintiff and defendant, and he has refused.

'9. That defendant holds title to said premises as trustee for plaintiff.'

The plaintiff prays that it be adjudged that the defendant holds title to the premises in trust for the plaintiff and defendant, and that the court adjudge and decree that the title to said property is in the plaintiff and defendant jointly, and for such general relief as may be proper. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff appeals.

The ruling of the trial court appears to have been predicated upon the premise that the facts set forth in the complaint show merely the breach of an oral agreement for the conveyance of an interest in land, for which agreement there was no consideration; that there was no fiduciary or confidential relation between the parties; that consequently a constructive trust did not arise, and plaintiff has no cause of action against the defendant.

Although the complaint does not in terms state that the agreement between the parties was an oral one, the record indicates that the case was disposed of by the trial court on the theory that it was, and the case was argued and submitted in this court on the theory that the agreement was an oral one. Accordingly, we will assume that the agreement set forth in the complaint was an oral agreement.

We are unable to agree with the construction which the trial court placed upon the facts set forth in the complaint or the conclusion reached by that court: that the complaint fails to set forth facts sufficient to constitute a cause of action. We are of the view that the complaint does state facts sufficient to constitute a cause of action.

According to the complaint the plaintiff and defendant had been husband and wife. During their marriage there...