La Cotts v. La Cotts

• Decision Date: 14 July 1913
• Citation: 159 S.W. 1111
• Parties: LA COTTS v. LA COTTS.
• Court: Arkansas Supreme Court

Page 1111

159 S.W. 1111

LA COTTS v. LA COTTS.

Supreme Court of Arkansas.

July 14, 1913.

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor.

Suit by John La Cotts, Sr., against George W. La Cotts. From a decree for plaintiff, defendant appeals. Reversed and remanded, with directions.

R. D. Rasco, of De Witt, for appellant. W. N. Carpenter and J. M. Brice, both of De Witt, for appellee.

McCULLOCH, C. J.

This case involves a controversy between father and son over the title to a quarter section of land in Arkansas county, where appellant and appellee both reside. The tract of land was originally owned by appellee, John A. La Cotts, and was sold by a commissioner of the chancery court of Arkansas county in the year 1906, pursuant to a decree of that court in favor of I. C. Gibson against appellee. Appellant purchased the land at the sale, and the commissioner conveyed it to him; the deed being approved by the court and duly recorded. The land was adapted to culture of rice, and appellant converted it into a rice farm, expending about $5,000 in putting down a deep well and installing machinery, erecting sheds, etc. Appellee claims that appellant purchased the land at the sale at his (appellee's) request and pursuant to an agreement between them, to the effect that appellant would buy the land as an accommodation for the purpose of discharging the lien of the decree, and that he would hold the title in trust for appellee and reconvey the same on payment of the price paid. He seeks in this proceeding to have appellant declared to be a trustee holding the title to the land in trust for him, and the chancellor sustained his contention and rendered a decree in his favor. The court appointed a master to ascertain the value of the improvements placed on the land by appellant, and the rents and profits which had been enjoyed by him, and decree a lien in appellant's favor for the amount due for improvements and taxes in excess of the rents and profits. The master found that the value of the improvements placed on the land by appellant amounted to $6,714.88, and that he was entitled to recover the sum of $2,224.88, the amount over and above the rents and profits received. The learned chancellor filed a written opinion, in which he decided that appellant should be held as a trustee on account of his own wrong. He based his conclusion on the opinion of this court in the case of Ammonette v. Black, 73 Ark. 310, 83 S. W. 910.

We are of the opinion that, according to the proof adduced, this case does not contain any elements of a trust ex maleficio, for the reason that the proof does not show that appellant procured the title by the commission of any fraud. Putting it in the strongest light, the testimony adduced by appellee only tends to establish a promise on the part of appellant to purchase the land and hold it for appellee, and a breach of that promise. This alone is not sufficient to establish a trust ex maleficio. Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848. Judge Riddick, in delivering the opinion of the court in Ammonette v. Black, supra, after quoting from Professor Pomeroy concerning what constitutes a trust ex maleficio, said: "There must, of course, in such cases be an element of positive fraud by means of which the legal title is wrongfully acquired; for, if there was only a mere parol promise, the statute of frauds would apply."

Appellee testified that when the land was advertised for sale he applied to his son John to see if he would buy the land in. John replied, saying that he would do so, but that his brother George (appellant) had more money than he, and that probably he would buy the land in. Appellee testified that subsequently he saw his two sons, appellant and John, standing on the street, and when he walked up to them John remarked that George would attend to the matter for him, meaning to buy in the land, and that in reply he merely admonished them not to neglect it. The evidence shows that appellant, after purchasing the land, took possession of it and made valuable improvements thereon without any objection from appellee until a short time before the suit was instituted. Appellee formerly owned...