Davis v. Dickerson

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Davis v. Dickerson, 207 S.W. 436, 137 Ark. 14 (Ark. 1918)
• Decision Date: 23 December 1918
• Docket Number: 44
• Parties: DAVIS v. DICKERSON

207 S.W. 436

137 Ark. 14

DAVIS v. DICKERSON

No. 44

Supreme Court of Arkansas

December 23, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

Affirmed.

Starbird & Starbird, for appellant.

1. This case falls squarely within our statute. Kirby's Digest § 3666; 51 Ark. 71; 67 Ark. 526; 110 Id. 389.

2. It was error to exclude the certified copy of the decree. The objection was general. It was res adjudicata. The decree was final and can not be attacked collaterally.

OPINION

MCCULLOCH, C. J.

This action, instituted in the circuit court of Sebastian County by appellee against appellant, is based on an alleged breach of trust committed by appellant in wrongfully selling a certain tract of land situated in Crawford County, Arkansas the title to which he held, in part, as trustee for appellee. It appears from the complaint in the action and the testimony adduced by appellee that the tract of land originally was owned by one Wassamer, who conveyed it by absolute deed to one James; that appellee furnished one-half of the consideration for the conveyance under a parol agreement with James that the latter would hold the title in trust for appellee; that James, in violation of the trust, sold and conveyed the property to appellant, who prior to that transaction was fully apprised of appellee's interest in the land and orally agreed to hold as trustee for appellee but that appellant, in violation of the trust, sold the land to one Cherry for the sum of $ 1,500, which sum appellant had received and refused to share with appellee.

Appellant filed his answer in which he denied that when he purchased the land from James he had any notice or information concerning the alleged interest of appellee, or that he made any agreement with appellee to hold the land in trust for him, and he also pleaded, as a former adjudication of the issues a decree of the Crawford Chancery Court against appellee in which it was decided the latter had no interest in the lands in question. There was a trial of the cause below before a jury and appellee secured the verdict of the jury for the recovery of the sum of $ 750, which is shown to be one-half of the consideration received by appellant in the sale of the lands.

It is contended in the first place that the parol agreement of James, as well as the subsequent parol agreement of appellant, to hold the land in trust for appellee constituted an effort to engraft an express trust upon an absolute deed, and is void because it is within the statute of frauds. Kirby's Digest, § 3666. This is undoubtedly true, but the evidence in the case shows something more than a mere parol agreement on the part of James and appellant to hold the land in trust. It shows that appellee furnished one-half of the consideration upon an agreement that he was to have an undivided half interest in the land, and, according to well-established principles of equity, a trust resulted in his favor. The doctrine of resulting trusts is so familiar that it is unnecessary to cite authorities to establish or elucidate it. The fact that appellee furnished only a moiety of the purchase price does not prevent the transaction from falling within the doctrine of resulting trusts so as to give him a proportionate interest in the land.

It is equally well settled that on the breach of a trust the beneficiary has his remedy by personal action against the trustee. In the case of Oliver v. Piatt, 44 U.S. 333, 3 HOW 333, Mr. Justice Story, speaking for the court, said: "It is a clearly established principle in that jurisprudence, that whenever the trustee has been guilty of a breach of the trust, and has transferred the property by sale or otherwise, to any third person, the cestui que trust has a full right to follow such property into the hands of such third person,...