Barry v. Frizzell, 39294
| Decision Date | 02 May 1962 |
| Docket Number | No. 39294,39294 |
| Citation | 371 P.2d 460 |
| Parties | Dulce BARRY, Plaintiff in Error, v. Claud FRIZZELL, Individually and as a Trustee; Burl Cumpton; Clifford Gaither, Bonnie Gaither and Harold Gaither, individually and as co-partners doing business as the Black Crystal Coal Company, and as co-partners doing business as the Cedar Creek Coal Company, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Resulting trusts are those which arise where the legal estate in property is disposed of or acquired, not fraudulently or in violation of any fiduciary duty, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title. In such a case, a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner.
2. The general rule is that a mere preponderance of the evidence is not sufficient to establish a constructive trust, but that it must be established by evidence which is clear, definite, unequivocal and satisfactory, or such as to lead to but one conclusion, or as to leave no reasonable doubt as to the existence of the trust.
3. The word 'royalty' as used in instruments in connection with the production of minerals means in its popular sense a share of the products or proceeds therefrom, reserved to the owner of land for permitting another to use the property.
Appeal from the District Court of Haskell County; Clyde M. Followell, Judge.
Appeal by Dulce Barry (plaintiff below) from a judgment, after trial to the court, in favor of defendants, and denying plaintiff's action to establish a resulting or constructive trust in coal lands in Haskell County. Reversed with directions to render judgment in favor of plaintiff.
Harold B. Dane, Stigler, for plaintiff in error.
Stipe & Gossett, McAlester, for defendants in error, Claud Frizzell and Burl Cumpton.
This is an appeal by Dulce Barry (plaintiff below) from a judgment of the lower court denying her action and prayer that she be declared the owner of an undivided one-third interest in certain real estate (approximately 80 acres) located in Haskell County, Oklahoma. The parties will be referred to as they appeared in the lower court or by name.
Plaintiff is the former wife of one Don Barry from whom she first secured a divorce on April 23, 1959. After remarriage she secured another divorce on September 8, 1959. She initiated the action December 5, 1959, against Claud Frizzell, individually, and as Trustee; and Clifford Gaither, Bonnie Gaither and Harold Gaither, co-partners doing business as Black Crystal Coal Company and as Cedar Creek Coal Company. Burl Cumpton became a party defendant and filed answer on the day of the trial. In her petition the plaintiff sought to have the court adjudge that under the facts and circumstances a constructive or resulting trust was created by force of law, whereby, Frizzell acquired and held title to a one-third interest in the lands in trust for Don Barry. Plaintiff's right or title to such interest is by reason of the provisions of her divorce decree from Don Barry which in express terms vests in plaintiff all the interest of Don Barry in the lands. The defendants Gaither are the lessees of the lands under the name of Black Crystal Coal Company and occupy the position of stakeholders and in their answer state their willingness and ability to pay the royalty payments, as directed by the court, to the party entitled to receive such royalty payments.
After the introduction of the evidence of all the parties the lower court denied plaintiff any relief and rendered judgment for the defendant. Plaintiff has appealed to this court.
Plaintiff urges that the judgment was not sustained by the evidence, was against the clear weight of the evidence and is contrary to law.
This is a case of equitable cognizance and this court will consider and weigh all of the evidence. It was agreed that the divorce decree rendered when plaintiff divorced Don Barry provided that plaintiff have all interest of Don Barry in the land and that the title to the land was in the name of the defendant Claud Frizzell. It also appears to be conceded that Frizzell acquired the entire title to the land in December, 1957. The record reflects that at all times mentioned Barry, Cumpton and Frizzell were employees of Garland Coal Company or of Mine Service Company which operates Garland Coal Company, except that Barry's employment was terminated February 12, 1959.
Plaintiff's evidence consists of her own testimony and some documentary proof. It appears from her testimony that prior to December, 1957, or at least prior to the date Frizzell acquired title, plaintiff and her husband (Don Barry) considered buying the land, but that Cumpton 'told him to lay off the land' and 'to let Claud Frizzell bid on it;' that Cumpton asked about the land numerous times and that plaintiff checked the county records in April or May, 1958, and found Frizzell had acquired title; and that Don Barry offered to pay to Frizzell one-third of the cost. Plaintiff also testified that Don Barry received three checks from Frizzell representing one-third of the royalty from coal produced from the land. The first check was received in December, 1958, for $1079.59. With reference to the receipt and amount of this check the plaintiff introduced as her Exhibit 2, a 'Statement of Coal Royalty' from the land. This statement was admittedly in the handwriting of Cumpton except for a portion hereinafter mentioned. The statement, in Cumpton's handwriting, was for 'damage' and for royalty for the months of September, October and November, 1958, in the total sums of $6,629.44 and sets forth the cost of the land, with attorney's fee and taxes in the total sum of $3390.67, and 'amount to be disbursed' of $3238.77. This amount is then shown in one-thirds of $1079.59, each to Frizzell, Barry and Cumpton. The portion of the statement not in Cumpton's handwriting are notations designating one-third of the total cost and one-third of the total royalty as 'Barry share of cost' and 'Barry share of receipts.' There was no proof of who wrote these notations. Plaintiff testified this Exhibit 2 was used in connection with the 1958 Federal Income Tax return of her and Barry and that one Hardy Hall prepared the return.
The second check was received in January, 1959, for $408.16 and the third check in February, 1959, for $498.65. These two checks were each accompanied by a statement of 'Coal Royalty' from the land for the previous month and under 'Distribution' reflect a division of the total royalty for the respective months into thirds identical with the above amounts. Frizzell, Barry and Cumpton were each shown to be the recipient of a one-third share.
Plaintiff also introduced a 'Depletion Schedule of Coal Properties--1958' filed by her and Barry in connection with their tax return and reflecting cost of $1130.22, which agrees with one-third of the cost of the land shown on Exhibit 2. Plaintiff further introduced a letter from her attorney to Frizzell, dated April 25, 1959, with copy to Black Crystal Coal Company (lessee and producer of the coal) advising of the terms of the divorce decree. Plaintiff's evidence also showed subsequent accrual in 1959 of coal royalty and that she received no part of this royalty.
The evidence of the defendants was testimony by Cumpton and Frizzell. Cumpton denied that he owned any interest or that he ever entered into any agreement that he have an interest in the land. Cumpton admitted that he received the same amounts from Frizzell as were received by Barry in December, 1958, and in January and February, 1959, and likewise received the statements of 'Coal Royalty' that accompanied the latter two checks. He explained that he was paid for making a survey of the boundaries and some other work and that his agreement with Frizzell was:
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