Brabham v. Brabham, 39814

• Citation: 84 So.2d 147,226 Miss. 165
• Decision Date: 19 December 1955
• Docket Number: No. 39814,39814
• Parties: J. D. BRABHAM v. Mrs. Mildred Harper BRABHAM.
• Court: United States State Supreme Court of Mississippi

Page 147

84 So.2d 147

226 Miss. 165

J. D. BRABHAM v. Mrs. Mildred Harper BRABHAM.

No. 39814.

Supreme Court of Mississippi.

Dec. 19, 1955.

Emmette P. Allen, Brookhaven, for appellant.

Breed O. Mounger, Tylertown, Reeves, Brumfield & Reeves, McComb, for appellee.

GILLESPIE, Justice.

Appellant was the defendant below, the husband of appellee. We refer herein to the appellant as the husband, and appellee as the wife.

The wife sued her husband for divorce on grounds of habitual drunkenness, habitual use of drugs, and habitually cruel and inhuman treatment. The bill charged that when the parties married neither had any property; that they have acquired certain property by the joint efforts of the parties; that the wife contributed funds earned from teaching to a common pool; that the wife carried on the business, which was in the husband's name while the husband was confined for treatment for alcoholism and the drug habit, and managed the business at such times; that the wife had lent her credit in acquiring, maintaining and accumulating said property; that by operation of law a resulting trust was raised in favor of the wife, and the prayer was that the court adjudge the wife to be owner of an undivided one-half interest in the property, and for its sale by a commissioner for division of the proceeds. The chancellor granted the wife a divorce and custody of their thirteen year old daughter; adjudged the wife to be an owner of an undivided interest in the property; gave judgment against the husband for $150 per month alimony and child support; adjudged the wife entitled to retain half of $5,000 withdrawn from a joint bank account, and awarded the wife the free use of the home, its furnishings, and an automobile.

The home was purchased in the name of the husband and wife and no issue arises as to its title.

We first state the facts touching the acquisition and accumulation of the property, all of which was and is in the name of the husband, for the purpose of determining whether the facts raise a resulting trust in favor of the wife.

The husband had been in the automobile business prior to their marriage in 1936, in which year he established an automobile agency business, which was later closed out and no assets remain from the operation of that business, and while much evidence was taken in regard thereto, we do not deem that evidence material on the issue here involved.

The husband secured a contract in 1946 for the distribution of Pontiac automobiles, and the Brabham Pontiac Company was begun in 1946. The wife had no money and the husband had little, if any, with which to start a business. The husband borrowed $8,000 from his brother-in-law, in consideration of which loan, he gave his brother-in-law a one-fourth interest in the business, which interest was reconveyed to the husband when the money was later repaid. The husband gave his brother-in-law checks, signed only by himself, to be held until the money was repaid as evidence of the indebtedness. With this borrowed $8,000, the husband bought three lots, taking title in his own name. With the balance of the $8,000 and other borrowed money, a building was erected on these lots for the use in the automobile business. After the business began, the husband traded an automobile for additional lots. An additional $3,000 was borrowed by the husband from his brother-in-law, and both the $8,000 loan and the $3,000 loan were repaid from the profits of the business. This is how the busines started.

There was some testimony that an automobile apparently purchased some five or six years prior thereto and registered in the name of the wife was sold by the husband at or about the time of the commencement of the Brabham Pontiac Company, but it is not shown how much was realized from the sale of that automobile. That testimony is of no assistance to this Court in determining the issue of a resulting trust.

At the beginning of the business known as the Brabham Pontiac Company, including the acquisition of the real property in the husband's name, the wife did not put up any money, nor did she sign any notes, although at some later time she did sign notes with her husband.

During the operation of Brabham Pontiac Company, the husband would frequently get drunk or be under the influence of drugs, and on numerous occasions had to take treatment for these conditions, and during the absence of the husband, the wife stayed at the business, managed it, and kept it going. There was no contract for the payment of a salary to the wife. She testified that she spent the biggest part of her time working in the business from January 1948 to February 1949, at which latter date the Brabham Pontiac Company was sold by the husband; but the wife could not estimate the time spent in the business prior thereto, saying that the times worked were too numerous and frequent to estimate.

On November 13, 1946, the husband gave power of attorney to his wife to transact business in his name in connection with the Brabham Motor Company. The wife signed checks on the business bank account. From July 13, 1948, and thereafter, the wife held in her name a bank lock box, to which the husband had access, and she put money in and took money out of this lock box from time to time in connection with the operation of the business. The wife testified that she considered this business one-half hers, and based her understanding and claim on the fact that she considered her credit was used in establishing the business; that although she did not sign notes or other obligations at the beginning of the business, she considered that she was liable. It appears that the principal ground of her claim to one-half interest in the business and property, as shown by her testimony, is based on the fact that she contributed time to make money and managed the business and kept it going when the husband was away.

The Brabham Pontiac Company was sold by the husband in February, 1949. The building and the lots were retained. The wife did not join in signing any papers in connection with this sale. After sale of the Brabham Pontiac Company, the lots and business building thereon were leased by the husband for a five-year term, at a monthly rental of $350, with the lessee paying the taxes and insurance. This lease expires in 1956. There is a lien on this property payable at the rate of $200 per month, the notes having been signed by the husband and wife.

The husband leased from Mrs. J. H. Brent certain property known as the Nettles System Building, located on Canal Street in McComb, Mississippi, for $25 per month, the lease being for a term of five years, expiring in 1956. The husband sub-let this property for $75 per month, so that it returns a net income of $50 per month until the lease expires.

The wife contends that the foregoing circumstances raise a resulting trust in her favor entitling her to be adjudged the owner of an undivided one-half interest in and to the lots and buildings above mentioned, and in the leasehold on the Nettles System Property.

"A resulting trust arises, if at all, in the same transaction in which the legal title passes, at the time that legal title passes, on consideration advanced before or at that time, and not from matters thereafter occurring or on consideration thereafter advanced unless occurring or advanced immediately thereafter so as to be in fact a part of the same transaction. The fundamental reason for the rule is that the resulting trust is one implied by law from the circumstances of consideration at the time of the transaction', although the trust is not affected by the failure of the person purchasing the land to obtain a valid deed or title thereto at the date of the transaction, but the trust attaches when the title is obtained subsequently. 54 Am.Jur., p. 159, Sec. 204; Moore v. Moore, 74 Miss. 59, 19 So. 953; Bush v. Bush, 134 Miss. 523, 99 So. 151. In the Moore case, Judge Whitfield, speaking for the Court, quoted from the old case of Rogers v. Murray, 3 Paige, N.Y., [390, at page] 397, where it is said: 'After the legal title has once passed to the grantee by the deed, it is impossible to raise a resulting trust, so as to divest the legal estate, by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase money." Windham v. Windham, 218 Miss. 547, 67 So.2d 467, 470.

'Cases involving questions of resulting trusts have often been before this court. The following principles are recognized and declared by ...