Ewing v. Ewing
| Decision Date | 11 September 1912 |
| Citation | 126 P. 811,33 Okla. 414,1912 OK 566 |
| Parties | EWING ET UX. v. EWING. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where A., as agent for the G. heirs, was authorized by them to sell their farm of 142 acres and improvements thereon for $14,000 net, and A. thereafter induced his brother J., who lived in another state and knew nothing of the value of that or similar property in the surrounding country, to come to Oklahoma for the purpose of buying it, which he did, and where A. suppressed that $14,000 was all that was asked for the whole tract and induced J., who relied upon his honesty to believe that only said tract of land, less one certain five acres in one corner, including the improvements, could be bought for $14,000, which was false, and that A. and wife would take a two-sevenths interest therein if J. would purchase said tract, less the five acres, for that price which he did, but which agreement they refused to perform and where, unknown to J., A. thereafter took possession and caused the G. heirs to execute a deed for said five acres to A.'s wife, without further consideration, held, that as to said five acres A. acquired title thereto by fraud, that both are trustees ex maleficio of a constructive trust, and that the court did not err in decreeing a conveyance thereof to J. Held further, that the fact that J. could not have been compelled to convey to A. and wife said two-sevenths interest, because of the want of evidence of their agreement so to do, does not entitle them to invoke the statute of frauds to exclude parol evidence of said agreement.
Error from District Court, Logan County; A. H. Huston, Judge.
Action by John D. Ewing against Amos A. Ewing and wife. Judgment for plaintiff, and defendants bring error. Affirmed.
Virgil M. Hobbs and Devereux & Hildreth, all of Guthrie, for plaintiffs in error.
Burford & Burford, of Guthrie, for defendant in error.
On January 10, 1908, John D. Ewing, defendant in error, sued Amos A. Ewing and Ella K. Ewing, his wife, in the district court of Logan county to set up a constructive trust. His petition substantially states that on August 21, 1907, certain Green heirs were the owners and in possession of a certain well-improved and cultivated tract of land (describing it) containing 142 acres, situated one-half mile west of the corporate limits of Guthrie, Logan county; that located on about five acres, and in the southwest corner thereof, were a large two-story frame dwelling house, orchard, vineyard, windmill, tank, and other improvements of the value of about $3,000; that said heirs were offering to sell the entire tract for $14,000, and had authorized the defendant Amos A. Ewing to find them a purchaser; that said Ewing is his brother, and lives in Guthrie, where he has been for 15 years, and at that time was in the real estate business and well acquainted with the value of farm lands in that vicinity; that plaintiff is a resident of Ohio, and has been for 50 years, with no knowledge of such values, or the value of said farm, all of which was well known to said Amos A. Ewing; that the relation between him and his said brother was confidential and friendly and always had been; that up to the times hereinafter mentioned he believed him to be possessed of a good character for honesty and fair dealing, and reposed in him absolute confidence and trusted his judgment as to the value of land in and about Guthrie; that with intent to defraud plaintiff said Amos A. Ewing falsely represented to him that said farm, less said five acres, could be bought for $14,500, less his commission of $500 on the sale which he would knock off, and that the same was cheap at that price, whereas, in truth and in fact, said heirs had authorized him to sell the entire tract, including said five acres and all improvements thereon, for $14,000; that thereupon, believing said representations to be true, it was agreed between plaintiff and defendant that plaintiff would furnish the money and buy said farm and that said defendant would take a two-sevenths interest therein for $4,000, to secure which he and his wife were to execute notes, payable to plaintiff, after which said tract would be cut up into lots and blocks and sold, and after said $4,000 had been repaid out of the proceeds the balance was to be prorated between them according to their several interests; that pursuant thereto said $14,000 was paid to said heirs, who executed to plaintiff a deed thereto, less five acres (describing it); that at the same time, unknown to plaintiff, said defendant, with design to cheat and defraud plaintiff, procured said heirs to execute a deed to his wife, the defendant E. K. Ewing, conveying her said five acres, including all improvements thereon, the only consideration therefor being said $14,000 paid by plaintiff; that said deed was made pursuant to a secret understanding between Amos A. Ewing and said heirs, in effect, that for $14,000 they would convey said tract of land, including the five acres, in such proportions and to such persons as the defendant Amos A. Ewing might direct; that said five acres and the improvements thereon thus held by the defendant E. K. Ewing was thus bought and paid for by plaintiff, and was caused by the defendant Amos A. Ewing to be conveyed to his wife through a breach of confidence reposed in him by plaintiff; that the same, in equity and good conscience, is his property, which said Ewing holds in trust for him; that she paid no consideration therefor; and that defendants have refused to convey the same to plaintiff on demand. He prays for an injunction, and that he be decreed the equitable owner of said five acres and entitled to the fee therein, and that defendants be ordered to convey the same to him by proper deed, and for general relief.
For answer Amos A. Ewing pleaded, in effect, a general denial, and for a second defense admitted that the Green heirs had employed him as agent to sell the whole of said tract of land, including the five acres in controversy, for $14,000 net to them, with the understanding that all over said amount he could get for said land should be his commission. He alleged that plaintiff knew at the time he paid the $14,000 that the same was the purchase price of said tract, less said five acres, which he says he and the Green heirs agreed should be his commission. He specifically denied that he had conveyed the same to his wife in fraud, but insisted that the same was done pursuant to an antenuptial contract, whereby he owed her $1,250. For answer the defendant E. K. Ewing, after general denial, pleaded, in effect, the same.
On the trial "the court made the following special findings of fact:
"(1) That the plaintiff and the defendant Amos A. Ewing are brothers, and that the defendants Amos A. Ewing and E. K. Ewing are husband and wife.
(2) That, prior to August, 1907, the defendant Amos A. Ewing obtained from the Green family their net price on their entire farm of 142 acres, including the improvements; the same being $14,000.
(3) That the defendant Amos A. Ewing induced the plaintiff to come to Oklahoma with a view of purchasing land, and showed him the Green farm.
(4) That the defendant Amos A. Ewing represented to the plaintiff that only 137 acres of the farm was for sale, and that the five acres of the farm in the southwest corner thereof, including the improvements in the way of house, barn, outbuildings, etc., were not for sale, and that the price fixed upon the 137 acres was $15,000, but that that sum included a commission of $500 to him, and that he, of course, would take no commission, thereby leaving the net price $14,500.
(5) That upon the suggestion and request of the defendant Amos A. Ewing, Fred Green, one of the owners of the land, and the one who was conducting the negotiations, told the plaintiff that said five acres and improvements were not for sale, and that the price of the remainder of the land was $14,500.
(6) That the Greens, the owners of the land, never at any time raised the price of the land to $15,000, nor to $14,500, but under the arrangement, had a larger price been obtained, the excess over $14,000 was to be retained by the defendant Amos A. Ewing.
(7) That the plaintiff refused to purchase for $14,500, and upon the suggestion of the defendant Amos A. Ewing the Greens informed plaintiff that he could purchase the 137 acres for $14,000.
(8) That the plaintiff refused to purchase the 137 acres, unless the defendant would take an interest therein with him, and that the defendants verbally agreed with him to take a two-sevenths (2/7) interest therein, and that he should hold the title thereto, and that they should give their notes for such two-sevenths interest; and thereupon plaintiff contracted with the Greens for the purchase of the 137 acres at the price of $14,000; but the defendants did not carry out the plan to take two-sevenths interest.
(9) That the plaintiff examined the land and exercised his own judgment as to its quality and general value, but that the defendants, and especially the defendant Amos A. Ewing, urged and advised its purchase.
(10) That the reasonable value of the entire tract, including the improvements, was $14,000, and that the reasonable value of the 137 acres, without the improvements, was $11,500, and that the reasonable value of the five-acre tract, including the improvements, was $2,500.
(11) That the $14,000 paid by the plaintiff was the entire consideration paid to the Greens for the entire farm, and that upon the payment of the same to them they conveyed the 137 acres to the plaintiff, and the five acres, including the improvements, to the defendant E. K. Ewing, and that no other consideration...
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