Bowmaster v. Carroll

• Citation: 23 F.2d 825
• Decision Date: 03 January 1928
• Docket Number: No. 7777-7779.,7777-7779.
• Parties: BOWMASTER v. CARROLL et al. BLACK v. SAME. FORCIER v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

23 F.2d 825 (1928)

BOWMASTER v. CARROLL et al.

BLACK v. SAME.

FORCIER v. SAME.^*

Nos. 7777-7779.

Circuit Court of Appeals, Eighth Circuit.

January 3, 1928.

W. J. Campbell, of Tulsa, Okl. (Albert H. Bell, Ray S. Fellows, and W. D. Humphrey, all of Tulsa, Okl., on the brief), for appellants.

Sam K. Sullivan and Neal A. Sullivan, both of Newkirk, Okl. (R. J. Shive, of Newkirk, Okl., on the brief), for appellees.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

This is an appeal from a decree in a suit in equity dismissing the amended bill of appellant Bowmaster and the amended answers and counterclaims of appellants Black and Forcier.

On October 28, 1915, the South Carolina Oil & Gas Company entered into a departmental oil and gas lease with Charles E. Norton, as superintendent of the Kaw Indians, for Ernest Thompson, a minor, and an allottee of the Kaw Tribe of Indians, whereby the oil and gas company leased from such allottee the S.W.¼ of Sec. 15, Tp. 27 N., R. 5 E., and certain other lands.

On April 24, 1916, the oil and gas company assigned out of this lease the S.½ of the S.W.¼ of said section 15, to Walter Carroll, the then husband, since deceased, of the appellee Evelyn Carroll. On July 12, 1916, this assignment was approved by the Secretary of the Interior.

The appellant Bowmaster, in paragraph 2 of his amended bill, alleged the following facts:

"Plaintiff avers that heretofore, to wit, on or about the 15th day of April, 1916, this plaintiff and the said defendants T. Shelby Black, Guy Forcier, and one Walter Carroll entered into an agreement to purchase said oil and gas mining lease, and by the terms of said agreement each of the four parties just named were to become the owner of an undivided one-fourth interest therein, with the further agreement and understanding that the said Walter Carroll would act for the said named persons in procuring the said lease, and each of the four persons were to pay their respective one-fourth part of the purchase price of said lease, said purchase price being the principal sum of $800; and, pursuant to said agreement, the said parties did purchase said oil and gas mining lease, and did pay each their one-fourth interest therein, including the expenses of procuring same; and that said Walter Carroll, acting for himself and for the plaintiff and the said defendants Black and Forcier, did take the assignment of said lease in his name, thereby causing the naked legal title thereto to become vested in him, but plaintiff avers that he (the said Walter Carroll) held the said lease and leasehold estate in trust for this plaintiff and the said Black and Forcier, each being the owner of an undivided one-fourth interest therein, the said Walter Carroll also holding in his own right an undivided one-fourth interest."

The appellants Black and Forcier allege substantially the same facts in their amended answers and counterclaims.

The amended bill and amended answers and cross-petitions sought decrees establishing the alleged trust, and also an accounting of the rents and profits.

On December 27, 1916, Walter Carroll died, leaving a last will and testament by which he bequeathed and devised to Evelyn Carroll all of his estate. On September 19, 1918, a decree of distribution was entered in the matter of the estate of Walter Carroll, deceased, in the county court of Tulsa county, Okl., decreeing that Evelyn Carroll was entitled to all of the property, real and personal, belonging to the estate of Walter Carroll, deceased.

Walter Carroll made no assignment or transfer in writing of the assignment of lease above referred to, and held the legal title thereto at the time of his death.

The alleged contract or contracts, if any there were, between Walter Carroll and appellants relative to such assignment of lease were not in writing, but rested wholly in parol.

It is difficult to determine the exact theory upon which appellants bottom their case. Under proposition 2 of their brief, they say:

"The fact that a trust resulted in favor of appellants in the lease in controversy, whether on the theory that appellants and Walter Carroll were coadventurers or on the theory that appellants advanced their portion of the consideration which was paid for the lease in controversy, or on the theory that Walter Carroll advanced for appellants their share of the consideration under circumstances that made appellants liable to repay to him the amount of such advancements, is manifest from the proof that it was the intention of all the parties that the lease in controversy was to be their jointly owned property and was for their mutual benefit, and that it was so considered by Walter Carroll and appellants after he acquired the same, taking title in his individual name.

"The ultimate fact contended for by appellants in this appeal is that a resulting trust exists in the lease in controversy in their favor, to the extent of an undivided one-fourth interest each, and such could be the fact on various theories or grounds under the record herein. The resulting trust contended for could be the result of an agreement between appellants and Walter Carroll before the lease in controversy was acquired by him and title taken in his name, that such lease would be acquired for the benefit of the four parties, each to have an undivided one-fourth interest therein. * * * Or the resulting trust might arise by virtue of the fact that appellants paid to, or placed at the disposal of, Walter Carroll their respective portions of the consideration for this lease, at or prior to the time that Walter Carroll acquired the lease, taking the title in his own name. * * * Or the resulting trust might have arisen by reason of the fact that Walter Carroll advanced for appellants their share of the purchase price of the lease in controversy at the time he acquired the same, taking the title in his own name under an agreement, express or implied, that appellants would repay to him the amount of such advancement."

A joint adventure has been defined as follows: "A special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation." 33 C. J. 841; Perry v. Morrison, 118 Okl. 212, 247 P. 1004, 1006; Griffin v. Reilly (Tex. Civ. App.) 275 S. W. 242, 246.

The pleadings did not allege, and the proofs did not establish, the relation of joint adventurers between appellants and Walter Carroll. The purchase of property by two or more persons, each of whom contributes a portion of the purchase price, makes them joint owners of the property, but does not, without more, establish between them the relation of joint adventurers. 33 C. J. § 3, p. 842; Brady v. Colhoun, 1 Pen. & W. 140, 147. Appellants failed to establish the existence of a combination between them and Walter Carroll for the purpose of jointly making a profit, at or prior to the time Walter Carroll acquired the assignment of the oil and gas lease. It follows therefore that, when Walter Carroll took the legal title in his own name to the assignment of the oil and gas lease, he did not hold three-fourths of the same as a trustee for appellants as his associates in a joint adventure.

The remaining two theories upon which appellants apparently predicate their case are so related that they may be considered together.

Prof. Pomeroy, in his work on Equity Jurisprudence (4th Ed.) vol. 1, § 155, says:

"Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such a case a trust `results' in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner. Constructive trusts are raised by equity for the purpose of working out right and justice, where there was no intention of the party to create such a relation, and often directly contrary to the intention of the one holding the legal title."

See also, Springer v. Young, 14 Or. 280, 12 P. 400, 402, 403; Sanders v. Steele, 124 Ala. 415, 26 So. 882, 885, 886.

The same distinguished author, in volume 3 (4th Ed.) § 1031, says:

"In all species of resulting trusts, intention is an essential element, although that intention is never expressed by any words of direct creation. There must be a transfer, and equity infers the intention that the transferee was not to receive and hold the legal title as the beneficial owner, but that a trust was to arise in favor of the party whom equity would regard as the beneficial owner under the circumstances. The equitable theory of consideration, heretofore explained, is the source and underlying principle of the entire class. Resulting trusts, therefore, are those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. In such 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. This person is the one from whom the consideration actually comes, or who represents or is identified in right with the consideration; the resulting trust follows or goes with the real consideration. All true resulting trusts may be reduced to two general types: (1) Where there is a gift to A, but the intention appears, from the terms of the instrument, that the legal and beneficial estates are to be separated, and that he is either to enjoy no beneficial interest or...