Doll v. Gifford

• Decision Date: 13 March 1899
• Citation: 56 P. 676,13 Colo.App. 67
• Parties: DOLL v. GIFFORD et al.
• Court: Colorado Court of Appeals

56 P. 676

13 Colo.App. 67

DOLL v. GIFFORD et al.

Court of Appeals of Colorado

March 13, 1899

Appeal from district court, Arapahoe county.

Bill by Louis Doll against W. Scott Gifford and another. There was a decree for defendants, and complainant appeals. Affirmed.

Westbrook S. Decker, for appellant.

Cranston Pitkin & Moore, for appellees.

WILSON J.

This was a suit in equity, the object of which was to establish and enforce a trust in certain real estate, arising from a transaction in which it was claimed all of the purchase money had been paid by plaintiff, but that the title had been conveyed by deeds absolute upon their face to another. It was alleged in the complaint that about 1875 the plaintiff, Doll purchased two separate, but adjoining, tracts of land in Arapahoe county, paying all the purchase money therefor, but by his direction, and for his convenience, in order to keep his partnership business separate and distinct from his private business, he had the deeds executed to Caroline Doll then unmarried, and his only daughter, who was residing with him at the time; that at the time of the taking of each deed "it was distinctly understood and agreed by and between this plaintiff and said Caroline Doll that said land was taken and held by her, and said deed received, for this plaintiff, and as his land, and that said Caroline Doll would at any time, on request, reconvey the said lands to this plaintiff"; that in April, 1877, Caroline Doll was married to defendant W. Scott Gifford, and died in August 1878, without having conveyed said property to plaintiff; that she died intestate, leaving as her sole heirs at law her husband and her infant child, Caroline Lotta Gifford, also a defendant. There was no allegation that during the lifetime of his daughter plaintiff ever requested or attempted to secure any conveyance of these lands to himself, or that after her death, until the beginning of this suit, on June 21, 1892, he ever made any attempt to have the title vested in himself. The complaint also alleged that plaintiff, relying upon the agreement and promises of his daughter, entered upon and took possession of these lands immediately after the conveyance to her, and ever since had remained in such possession, control, and charge, and had expended and laid out considerable sums of money thereon for improvements. Plaintiff prayed a decree that he was the owner of the lands, and that the title be conveyed to him. He also prayed, if he was not found to be entitled to the reconveyance of said lands, that an accounting be had between him and the defendants, as heirs of the deceased, of all the matters and things growing out of the ownership, occupancy, possession, and improvements of said lands, and of the expenditures and disbursements thereon and receipts therefrom by plaintiff. Defendant W. Scott Gifford answered, denying specifically, upon information and belief, the various allegations in the complaint, and alleging, upon information and belief, that the land was paid for and purchased by and with the money of Caroline Doll, and that the deeds were taken in her own name, for her sole use, and as her sole property, and that plaintiff had no interest or right therein whatsoever. He also set up by way of cross complaint that said Caroline Doll, in her lifetime, was seised in fee simple of the premises, and every part thereof; and that the plaintiff did not have, and never had, any interest or title thereto or therein; and prayed a decree that the title to the premises be adjudged, confirmed, and quieted in the defendants, etc. The minor defendant appeared by guardian ad litem, and answered in the usual form, putting in issue, of course, all of the matters alleged in the complaint which were prejudicial to her interest. In the trial the court called a jury to its aid, and submitted to it various proper interrogatories. The jury found, in substance, that it was the money of plaintiff which purchased the tracts, but that it was intended as a gift or advancement to his daughter. The court adopted these findings of the jury, and rendered a decree in favor of the defendants.

The assignments of error on which the plaintiff seeks a reversal resolve themselves substantially into one: that the findings and decree were contrary to, and unsupported by, the evidence. In support of this it is alleged and strenuously insisted that, as to the ownership of the land, the only issue under the pleadings was as to who paid for it, and, this being found by both court and jury in favor of the plaintiff, the decree should have been in his favor. To establish this point, plaintiff relies upon the fact that it was nowhere alleged in the answers, or either of them, that the payment of the money or the conveyance of the lands was a gift or advancement by plaintiff to his daughter and that it therefore was not an issue in the case. In other words, plaintiff contends that, having established that the purchase money for the lands was paid by himself from his own money, this was all that was necessary for him to show in order to secure a decree. We cannot agree with counsel either as to what were the issues under these pleadings or as to what it was incumbent upon plaintiff to show before he could secure a decree in his favor. The complaint was, in fact, construed strictly, a declaration on an express trust. It alleged a positive agreement and promise upon the part of the grantee to convey to him. It is true that this promise was not alleged to be in writing, which would have been necessary under the statute in order to establish an express trust; but this was matter of proof, and was not necessary to be specifically alleged in the complaint. Learned v. Tritch, 6 Colo. 443. Strictly speaking, therefore, defendants were called upon to answer only to the complaint, whose allegations were framed to show and establish an express trust. Upon trial, however, plaintiff offered no evidence showing or tending to show the existence of an express trust, but sought a recovery solely upon the ground of a resulting trust. If he had intended to frame his complaint so as to show a resulting trust, it was not necessary at all for him to have alleged any promise or agreement of the grantee to reconvey. A resulting trust arises in the absence of any agreement or promise. It arises by operation of law. When it is shown that a party pays the purchase money for real estate, the law raises a presumption that he who paid it intended to reap the benefits of it, and to be the beneficiary, although the title was placed in another; and this presumption becomes conclusive unless overthrown by stronger evidence. In this case, therefore, the defendants were not advised until the trial, on the introduction of testimony by plaintiff, that the plaintiff sought to rely upon a resulting trust. Plaintiff did not undertake to amend his complaint; and, if the defendants saw fit to meet the plaintiff on the ground that he had himself selected, we cannot see why he should complain because they did not amend their answer. In ordinary actions, as we have said, in order to prima facie establish a resulting trust, all that is necessary is to establish the fact that the party seeking to enforce the trust paid the purchase money. The law then raises the presumption of the trust. It is different, however, where the purchaser, and he who seeks to establish a resulting trust, takes the conveyance in the name of a wife, or child, or some other person for whom he is under some natural, or moral, or legal obligation to provide. When this appears, the presumption of a resulting trust is rebutted, and the law will presume, until the contrary is shown, that a gift or advancement was intended. It would have, therefore, been necessary for the plaintiff to have shown in this case by competent evidence, before he was entitled to a decree, not only that he paid the purchase money, but that it was not intended as a gift or advancement to his daughter. This was incumbent upon him under the allegations of his own complaint, because it showed upon its face the relationship which existed between him and the grantee in the deeds. We think, however, that, even if it be admitted--and we are not disposed to deny it--that under the allegations of this complaint plaintiff was entitled to show either an express or a resulting trust, the answer of W. Scott Gifford was entirely sufficient, even if it was necessary to put in issue everything which was required to establish such a trust. The relationship between plaintiff and the grantee appeared both in the complaint and in the answer;...