Bray v. Timms

• Decision Date: 28 January 1924
• Docket Number: 119
• Citation: 258 S.W. 338,162 Ark. 247
• Parties: BRAY v. TIMMS
• Court: Arkansas Supreme Court

258 S.W. 338

162 Ark. 247

BRAY v. TIMMS

No. 119

Supreme Court of Arkansas

January 28, 1924

Appeal from Union Chancery Court; J. Y. Stevens, Chancellor reversed.

Decree reversed and cause remanded.

John C. Leopard & Son, Randolph & Randolph and Marsh & Marlin, for appellant.

If any trust relation existed between Koch and Timms, it existed because of an express agreement or contract, and was an express trust. It could not have been a resulting trust because no part of the consideration paid for the deeds of conveyance was paid by Timms. Crawford & Moses' Digest § 4876. Parol evidence will not be heard to engraft an express trust upon a deed absolute in form. 103 Ark. 273; 104 Ark. 32; 110 Ark. 389; 100 Ark. 253. There is no implied trust relation existing between these parties, in respect to the royalty interest, neither can it be contended that a trust ex maleficio was created, since there is nothing in the record that raises even a suspicion that Koch practiced any fraud upon Timms. 113 Ark. 36; 73 Ark. 310. Appellee is estopped by the deed executed August 3, 1920, to Koch, as well as by his own conduct in holding his own assignment of same off the record, and procuring the conveyance to be made direct from Dail to Koch, and accepting the consideration from Koch that was paid for this one-half royalty described in the deeds. 10 R. C. L. 677; 8 Ark. 345. The testimony, even if parol evidence were admissible to establish a trust relationship here, does not meet the requirements of the law to the effect that such evidence must be full, clear and convincing. 89 Ark. 183; 11 Ark. 82; 19 Ark. 365; 44 Ark. 365; 45 Ark. 481; 48 Ark. 169; 64 Ark. 115; 1 Perry on Trusts, par. 137; 114 Ark. 128; 70 Ark. 145, 66 S.W. 658; 101 Ark. 451, 142 S.W. 848; 73 Ark. 313, 83 S.W 910; 3 Pomeroy, Eq. Jut., § 1056; 145 Ark. 161. See also 20 R. C. L. 1251, par. 98; 111 Ark. 45; 109 Ark. 335.

Mahony, Yocum & Saye and McClintock, Quant & Ferguson, for appellee.

1. A deed once executed and delivered cannot be revoked, nor the title reconveyed by cancellation or destruction of such. Devlin on Deeds, 3d ed., § 300; 8 R. C. L., § 70; 124 Va. 736; 92 Mo. 532; 166 Ind. 471; 225 Mass. 531; 44 N.D. 114; 107 Wash. 523; 188 Ky. 832; 242 S.W. 15; Id. 853; 21 Ark. 80; 34 Ark. 503; 52 Ark. 493; 53 Ark. 509; 60 Ark. 8; 108 Ark. 491; 245 S.W. 41.

2. A purchaser of land with notice of an unrecorded, delivered deed acquires no title, and purchases subject thereto, dependent upon the terms of the unrecorded conveyance. 14 Ark. 286; 48 Ark. 277; 57 Ark. 508-9; 77 Ark. 309; 95 Ark. 582; 108 Ark. 490; 127 Ark. 618; 132 Ark. 158; 135 Ark. 206; 138 Ark. 215; 238 S.W. 19.

3. The deed from Timms to Koch, dated August 3, 1920, never having been delivered, was void, and conveyed no interest in the Garrett Royalty. 14 Ark. 286; 24 Ark. 244; 74 Ark. 104; 77 Ark. 89; 80 Ark. 8; 97 Ark. 283; 98 Ark. 466; 100 Ark. 427; 123 Ark. 601; 132 Ark. 438; 140 Ark. 579; 142 Ark. 311.

4. The appellant cannot, on appeal, raise issues or defenses or present theories of the case for which he did not contend in the trial court. 74 Ark. 88; 74 Ark. 557; Id. 312; 81 Ark. 549; 82 Ark. 260; 83 Ark. 575; 101 Ark. 95; 108 Ark. 490; 131 Ark. 382; 132 Ark. 458; 149 Ark. 142.

5. Timms, while holding the legal title to the Garrett royalty by deed from Dail, with intent to convey part thereof for value, caused Dail to execute subsequent deed therefor to Koch, who transferred to Bray with notice. Timms, therefore, still holds the legal title to the Garrett royalty, in part for himself, and in part as trustee for Bray, to the extent only of Bray's actual equitable interest in such royalty. 7 N.D. 335, 47 L. R. A. 637.

6. While clear and convincing proof of a resulting or constructive trust is required, it is not essential that such proof be undisputed. 246 S.W. 499.

7. If one purchases land with notice of a trust, he takes it impressed with such trust. 137 Ark. 14, 207 S.W. 436.

8. There are, in this country, two kinds of enforceable parol trusts: first, resulting trusts, and, second, constructive trusts. 100 Ark. 253.

9. An oral agreement between A and B that B shall purchase certain property, taking title in his own name, A furnishing part of the consideration, and B the remainder, and that A should have a definite interest in the property by reason of having furnished a specific portion of the consideration, does not fall within the statute of frauds. It is a resulting trust, and enforceable. Pomeroy, Eq. Jur., 4th ed., § 1038; 9 Ark. 518; 19 Ark. 39; 20 Ark. 272; 27 Ark. 77; 29 Ark. 612; 35 Ark. 548; 40 Ark. 62; 42 Ark. 503; 45 Ark. 481; 64 Ark. 155; 70 Ark. 145; 79 Ark. 69; 81 Ark. 478; 105 Ark. 318; 114 Ark. 128; 118 Ark. 146; 132 Ark. 402; 243 S.W. 811.

10. Where one in the course of a fiduciary or confidential relationship purchases real property for the benefit of the party toward whom he holds that relationship, he cannot, by taking title thereto in his own name, claim the property to the exclusion of the other. Equity would hold such a person as a constructive trustee. Pomeroy, Eq. Jur., 4th, ed., § 1053; 19 Ark. 39; 20 Ark. 222; Id. 381; 26 Ark. 344; 39 Ark. 309; 73 Ark. 310; 101 Ark. 451; 103 Ark. 273; 113 Ark. 36; 136 Ark. 481; 151 Ark. 305.

OPINION

WOOD, J.

On the 18th of October, 1920, George B. Koch and wife executed and delivered to Rolla Bray the following deed:

"Know all men by these presents: That whereas, R. R. Garrett and Martha J. Garrett, his wife, did on the 5th day of June, 1919, execute and deliver to H. H. Neihaus, a trustee, a certain oil, gas and mineral lease on a tract of real estate then owned by them in Union County, State of Arkansas, described as 'the S 1/2 of the NW 1/4 of section 4, township 19, range 15, containing 80 acres, more or less, which said lease is recorded in book 74 at page 164 of the deed records of said county; and

"Whereas, on the 5th day of February, 1920, said R. R. Garrett and Martha J. Garrett, his wife, still the owners of said real estate, did execute, acknowledge and deliver to H. L. Dail of Union County, State of Arkansas, their deed of conveyance, transferring and conveying to said H. L. Dail an undivided one-half interest in and to all the oil, gas and other minerals in, under and upon said real estate, subject to the aforesaid lease, and an undivided one-half interest in and to all royalties reserved by virtue of said lease, together with other rights and interests, which said deed of conveyance was recorded on the 5th day of February, 1920, in book 85, at page 90 of the deed records of said county;

"Now therefore, George B. Koch, the undersigned, of Jamesport, in Daviess County, Missouri, for and in consideration of the sum of five thousand dollars in cash and a note of $ 2,500, issued by the said George B. Koch to L. W. Timms, the cash paid and note delivered by Rolla Bray of Daviess County, State of Missouri, the receipt of which is hereby acknowledged, does hereby sell, assign, transfer, set over, and convey unto the said Rolla Bray and unto his heirs and assigns forever all of his right, title and interest, as obtained aforesaid, to and under the said deed of conveyance made, executed and delivered aforesaid to him by H. L. Dail on the 7th day of May, 1920, and recorded in deed records 89 at page 296 of the deed records of Union County, in the State of Arkansas, conveying the oil royalties and all oil interests conveyed to him on the S1/2 of the NW1/4 of section 4, township 19, range 15, containing 80 acres, more or less, as shown by lease records in book 74 at page 164 of the deed records of said county.

"To have and to hold the same unto the said Rolla Bray and unto his heirs and assigns forever, under the terms and conditions as in said deed of conveyance contained.

"In testimony whereof I have hereunto set my hand this the 18th day of October, 1921.

"GEORGE B. KOCH,

"ANNA KOCH."

This action was instituted by Lewis W. Timms, the appellee (hereafter called Timms), and Harvey C. McClary against Rolla Bray, appellant (hereafter called Bray), to have a trust declared in favor of Timms to a four-sixths interest in the royalties conveyed to Bray by the above instrument. McClary afterwards dismissed his complaint, and he passes out. The interest conveyed by the deed is referred to throughout the record as the "Garrett royalty," and will hereafter be called the "Garrett royalty."

Timms alleges in his amended complaint that Bray holds the Garrett royalty, the same being a one-sixteenth interest in all the oil, gas and other minerals produced upon the land, in the proportion of four-sixths thereof for Timms and two-sixths for Bray; Bray denies this, and alleges that he owns the entire interest in the royalty conveyed to him by the deed.

R. R. Garrett and wife were the owners of eighty acres of land in Union County, Arkansas, and in 1919 they executed an oil and gas lease in usual form to one H. H. Neihaus, trustee, reserving to themselves one-eighth of the oil, gas and other minerals produced on said land. In addition to the above deed from Koch to Bray, the record contains the following documentary evidence:

On February 5, 1920, Garrett and wife conveyed to H. L. Dail an undivided one-half interest in the oil, gas and other minerals in, under and upon the lands described, subject to the Neihaus lease, and also an undivided one-half of the royalty they were to receive under the lease. This instrument was duly recorded on the day of its execution. On the back of the deed was indorsed an assignment from Dail to Timms of all Dail's interest conveyed by the deed. This assignment was dated February 27, 1920. The assignment was never recorded. On the 7th of May, 1920, Dail conveyed to George B. Koch, by deed...