Diel v. Beekman

• Decision Date: 19 June 1972
• Docket Number: No. 950--I,950--I
• Citation: 499 P.2d 37,7 Wn.App. 139
• Parties: Harold F. DIEL and La Voun Diel, his wife, Appellants, v. Hilkeline G. BEEKMAN, Respondent. Hilkeline G. BEEKMAN, Respondent, v. Harold F. DIEL and La Voun Diel, husband and wife, and the community composed of such parties, Appellants.
• Court: Washington Court of Appeals

Page 139

7 Wn.App. 139

499 P.2d 37

Harold F. DIEL and La Voun Diel, his wife, Appellants, v. Hilkeline G. BEEKMAN, Respondent.

Hilkeline G. BEEKMAN, Respondent, v. Harold F. DIEL and La Voun Diel, husband and wife, and the

community composed of such parties, Appellants.

No. 950--I.

Court of Appeals of Washington, Division 1, Panel One.

June 19, 1972.

As Corrected sept. 18, 1972.

Petition for Rehearing Denied Sept. 25, 1972.

Lindell & Carr, Allen Lane Carr, Seattle, for appellants.

Black, Christensen & Nielsen, Andrew T. Nielsen, Everett, and Rodney A. Boddington, Sultan, for respondent.

CALLOW, Judge.

This matter comes before this court for the second time having been returned previously for trial following reversal of the granting of summary judgment in favor of Hilkeline G. Beekman. Diel v. Beekman, 1 Wash.App. 874, 465 P.2d 212 (1970). Following a nonjury trial on the merits, the trial court entered judgment for Mrs. Beekman and Harold F. Diel and his wife again appeal.

Separate actions to quiet title to real property were consolidated for trial. Hereafter we refer to the plaintiff-lessees-appellants as Diels and the defendant-lessors-respondents as Beekmans. The difficulties arose between long-time acquaintances over farm property near Monroe, Washington.

The Diels claim that although the property was purchased in the Beekmans' name and so reflected on the real estate contract that it was the intent of the parties that Beekmans would purchase the property and hold it in their On February 10, 1953, Arnold and Hilkeline Beekman contracted to buy real property from the Harders. The Beekmans paid $5,000 down on the $30,000 purchase price and were to make monthly payments on the real estate contract at the rate of $200 per month until April 1956 when the payments were to be reduced to $150 per month until paid in full, and the purchaser was to pay taxes and insurance. The evidence reflects that payments on this contract were made to a bank, as collecting agent, from 1953 to 1967. In March of 1953, the Beekmans entered into possession. They paid rent from that time on at the rate of $200 per month as reflected on the checks admitted into evidence, and the amount of taxes and insurance was to be paid also.

name in trust for the Diels. It is the position of Mrs. Beekman that the intent of the parties was reflected by the written documents, the real estate contract and the lease, and that no trust was ever intended.

Arnold Beekman died June 24, 1955. Thereafter Harold Diel served as an appraiser of his estate and signed, on October 14, 1955, the appraisement which reflected the subject property in the estate. The value placed on the property by this appraisement was the amount of principal paid on the real estate contract to the date of death of Arnold Beekman. On July 30, 1956, the Diels entered into a 5-year lease with the surviving spouse, Hilkeline Beekman, as lessor. Under this lease, rent was to be $200 per month, there was no right to sublet without permission, and the lessees had an option to purchase for $25,000 with the rent paid to be applied to the purchase price if the option was 'taken up.' The rent proved to be too difficult for the Diels to meet, and it was reduced to $150 per month with taxes and insurance to be paid by Diels as under the prior lease.

The court found the facts recited and also found that the interest acquired by Beekmans was a community interest, that the funds used for the down payment on the real estate contract were borrowed from a bank by the Beekmans and paid to the Harders, and that Diels did not assume an absolute obligation to repay the down payment to the Beekmans at or prior to the time Beekmans purchased the property The trial court was confronted with arguments proposing alternative interpretations of the evidence. We appreciate its difficulty. We note in passing that the lease described in the initial opinion, 1 Wash.App. 874, 875, 465 P.2d 212, and referred to by counsel for Diels in his opening argument, was offered but not admitted into evidence. The record contains substantial evidence to support the findings as signed, the therefore they must be accepted as verities. Friedlander v. Friedlander, 80 Wash.2d 293, 494 P.2d 208 (1972); Michielli v. United States Mortgage Co., 58 Wash.2d 221, 361 P.2d 758 (1961); Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959).

from the Harders. The court further found that Diels have occupied the property since the day of the purchase, have made improvements, and that after the land was purchased, two fields were transferred to Beekmans which Beekmans have used since. (No deed or other document of transfer was in evidence.) The court also included in its findings that taxes, insurance and rent were paid by the Diels to the Beekmans until the present controversy commenced, whereupon Hilkeline Beekman refused to accept further payment. Finally, the court found that Diels did not file a claim in the estate and that the decree of distribution distributed the property to Hilkeline Beekman.

EXPRESS TRUST

An express trust of real estate may not be established by parol evidence but must be in writing. Zucker v. Mitchell, 62 Wash.2d 819, 384 P.2d 815 (1963); Kausky v. Kosten, 27 Wash.2d 721, 179 P.2d 950 (1947); Moe v. Brumfield, 27 Wash.2d 714, 179 P.2d 968 (1947); Georges v. Loutsis, 20 Wash.2d 92, 145 P.2d 901 (1944); Farrell v. Mentzer, 102 Wash. 629, 174 P. 482 (1918). RCW 19.36.010, 64.04.010 and 64.04.020 preclude establishing an express trust in land by parol evidence. Dowgialla v. Knevage, 48 Wash.2d 326, 294 P.2d 393 (1956). If one agrees to purchase land and give another an interest in it, then does so, pays his own money and takes title in his own name, no trust can result. Cushing v. Heuston, 53 Wash. 379, 102 P. 29 (1909). See In re We note the alleged agreement by which Diel was to repay the down payment loan, an oral promise to transfer title to two fields, would violate the statute of frauds. RCW 64.04.010; Beckendorf v. Beckendorf, 76 Wash.2d 457, 457 P.2d 603 (1969).

Estate of Cunningham, 19 Wash.2d 589, 143 P.2d 852 (1943), for a concise statement of the principles in this area.

However part performance by a beneficiary in possession may remove the transaction from the requirements of the statute. Restatement (Second) of Trusts § 50 (1959); Restatement of Contracts § 197 (1932). While this is true, we msut consider whether the facts in this case reflect sufficient part performance to establish an express trust in spite of the absence of a written memorandum.

Farrell v. Mentzer, Supra; Spaulding v. Collins, 51 Wash. 488, 99 P. 306 (1909); and Borrow v. Borrow, 34 Wash. 684, 76 P. 305 (1904), discussed the acts which may satisfy the statute and supplant the necessity of a writing. Factors weighed to ascertain if an express trust of land is enforceable, when with the consent of the trustee the beneficiary enters into possession are: a) making improvements, b) paying consideration, and c) changing position in reliance on the trust. The same factors are considered in establishing part performance whether the subject is an express trust of real property or an oral contract for transfer of an interest therein. These factors are to be weighed along with all of the other evidence bearing on the problem to establish whether or not it was the intent of the parties that such a trust would result. Under the established facts in this action, the statement in Grandquist v. McKean, 29 Wash.2d 440, 445, 187 P.2d 623, 626 (1947), is apropos:

Another requirement of the doctrine that part performance may take an oral contract out of the statute of frauds is that the acts relied upon as constituting part performance must unmistakably point to the existence of the claimed agreement. If they point to some other relationship, such as that of landlord and tenant, or may be accounted for on some other hypothesis, they are not sufficient. Broadway Hospital & Sanitarium v. Decker, 47 Wash. 586, 92 P. 445; Blakely v. Summer, 62 Wash. 206, 113 P The possession, improvements and part payment which existed in this case are as consistent with a landlord-tenant relationship as with a trustee-beneficiary relationship. The burden of establishing an express trust by part performance has not been met since the existence of the leases is inconsistent with the latter relationship, and therefore the evidence is insufficient to overcome the barrier of the statute. The record also establishes that the improvements made were consistent with and not contrary to Diel's position as tenants. So also was the transfer of the two fields to Beekmans. The reason for this relinquishment was never established, and it is as consistent with gift, withdrawal or the leases themselves as with a repayment of consideration. When we consider this, together with the entry into possession and paying of rent from 1953, the retention of possession under the lease of 1956, and periodic payments in the amounts set forth in the lease, we concur that the claim of sufficient part performance to establish an express trust must fall. The trial court's finding that on oral trust had not been clearly and unequivocally established as required by Grandquist v. McKean, Supra, is supported by the evidence.

257; Burns v. McCormick, 233 N.Y. 230, 135 N.E. 273; Woolley v. Stewart, 222 N.Y. 347, 118 N.E. 847; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024.

RESULTING TRUST

An express trust is intentionally created between the parties of the trust agreement while a resulting trust is a trust that results from the facts and circumstances of a situation by implication of law. Express and resulting trusts are contrasted in A. Scott, Trusts § 404.1 (3d ed. 1967), as follows:

An express trust is created only if the settlor manifests an intention to create it, although the manifestation may be made by conduct as well as by words. A resulting trust arises...