Clary v. Fleming

Decision Date31 May 1921
Docket Number4371.
CourtMontana Supreme Court

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by C. M. Clary, as administrator of the estate of Margaret Wolf, deceased, against A. L. Fleming. From judgment for defendant, and from order overruling his motion for new trial, plaintiff appeals. Reversed and remanded.

C. W Buntin, Charles J. Marshall, and C.J. Dousman, all of Lewistown, for appellant.

E. K Cheadle, of Lewistown, for respondent.


This action was brought by plaintiff against defendant for the purpose of ejecting defendant from a certain lot in the original town site of Moore and quieting title in plaintiff thereto. The case was tried to the court without a jury. Findings were made in favor of defendant, and judgment followed. Motion for new trial was made and overruled. Plaintiff appeals from the judgment and order overruling motion.

Margaret Wolf, deceased, was formerly Margaret Fleming, and the wife of A. D. Fleming, the defendant. In May, 1905, a deed was made by Montana Town-Site Company to Margaret Fleming conveying the premises. As an affirmative defense the answer alleges that defendant paid certain sums of money on the contract for the purchase of the lot, that no consideration was ever paid by Margaret Fleming for the execution and delivery of the deed, and that immediately prior thereto it was agreed between defendant and his wife that he should allow the deed to run to her as grantee in consideration of her promise that she would convey the lot to him at any time upon request. The answer also alleges that she obtained a divorce from him in 1909, at which time, as a settlement of their property interests, she promised that she would convey to him the lot after entry of decree of divorce and that in reliance upon her promise he made no appearance in the divorce proceedings, and no written agreement was made respecting their property interests. These allegations are traversed by reply. The proofs, however, fail to show what agreement was made between defendant and his wife at the time of or prior to the execution and delivery of the deed to her or even that any agreement was made. Defendant testified that immediately prior to the granting of the divorce she promised him that, if he would not fight the divorce, she would convey to him the premises, together with a half interest in other property held in her name. He also testified that he made demand upon her several times for a conveyance of the lot, and that she put him off from time to time with promises that she would make the conveyance. After the divorce, she married one F. E. Wolf.

Margaret Fleming did not record the deed immediately after receiving it, but held it until March, 1915. On the 14th of March, 1913, defendant, learning that her deed had not been recorded and assuming that it had been lost, procured another deed from Montana Town-Site Company, which deed was issued as a duplicate of the former one, but in the name of defendant. This deed was recorded March 15, 1913. On March 25, 1913, the original deed to Margaret Fleming was recorded. On the 21st of May, 1915, Margaret Wolf, formerly Margaret Fleming, died, and plaintiff was appointed administrator of her estate. By reason of the recording of the deed to defendant, this action was brought.

It is the contention of defendant that, under the facts stated, Margaret Fleming took the title to the premises in trust, and that he is entitled to have the title quieted in himself.

Twelve errors are assigned, but many of them are not entitled to consideration. These insufficient assignments of error involve the rulings of the court upon objections to the introduction of evidence, but each of them fails to point out any specific evidence objected to, or the page or pages of the transcript upon which such rulings can be found. It is altogether too much to expect that this court will go through an entire transcript and pick out rulings that it may conclude that appellant desires to attack by such assignments. The rule requires:

"When error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected." Rule 10, subd. 3b, 53 Mont. xxxvi, 167 P. x.

Reference should also be made to the page of the transcript where the objectionable ruling may be found.

One of the errors assigned is that the court erred in finding that the consideration for the lot was paid by defendant, and that the property was held in trust by Margaret Fleming for defendant. The case may be disposed of upon this assignment of error, and therefore it will be unnecessary to consider any of the other alleged errors.

The alleged agreement whereby Margaret Fleming promised to convey to defendant the lot in consideration of his failure to fight the divorce action was clearly collusion and against public policy, and was therefore void. Even if it be deemed an agreement for a property settlement such as is permissible under the statute, it is likewise void because not in writing. Rev. Codes, § 3695. Thus no further consideration need then be given to the legal effect of this agreement.

The vital question in the case is whether or not there was created a resulting trust in favor of defendant by reason of the fact that he paid the purchase price of the lot and the expense of improving the same, while the title was taken in the name of his wife. We do not think that the answer sets forth a resulting trust under this theory, but nevertheless will dispose of the question on the merits. Defendant relies upon section 4538 of the Revised Codes, which reads as follows:

"When a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made."

This statutory provision is merely a restatement of the common law; for it has been held from time immemorial that, as a general rule, if one person takes to himself the title of property purchased with the money of another, he takes it charged with a trust in favor of the one who furnished the consideration. This provision is intended to reach those cases whereby one party has violated the confidence or trust reposed in him by another and in buying property has taken title to himself, or wrongfully retained title, when, as a matter of fact, he had no interest therein. It is intended as a protection to the one who makes the actual investment against any fraudulent dealing on the part of one who may be acting for him in the matter. There are, however, exceptions to the rule as stated. If the property is purchased by one with his own money, and the title is placed by him in another to whom he stands in a confidential relation, such as husband, wife, parent, child, or such other relation that one may naturally have a claim upon the bounty of the other, then the presumption is that the conveyance is made as a gift. Taylor v. Miles, 19 Or. 550, 25 P. 143; Hamilton v. Hubbard, 134 Cal. 603, 65 P. 321, 66 P. 860; 51 Am. Dec. note 754, 755; Whitten v. Whitten, 70 W.Va. 422, 74 S.E. 237, 39 L. R. A. (N. S.) 1028, Ann. Cas. 1915D, 647. See, also, numerous citations in Lafayette Street Church Society of Buffalo v. Norton, 202 N.Y. 379, 95 N.E. 819, 39 L. R. A. (N. S.) 906. The Supreme Court of Oregon, in the case of Taylor v. Miles, supra, considering a similar question, uses this language:

"But the presumption that the party paying for the property intended it for his own benefit applies only when the transaction is between strangers, where there is no natural or legal

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