Fox v. Shanley

• Decision Date: 05 March 1920
• Citation: 109 A. 249,94 Conn. 350
• Court: Connecticut Supreme Court
• Parties: FOX v. SHANLEY et al.

109 A. 249

94 Conn. 350

FOX v. SHANLEY et al.

Supreme Court of Errors of Connecticut.

March 5, 1920

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Claim by Edward Fox against John F. Shanley, as administrator, and others. From the doings of commissioners claimant appeals. The court on motion ordered a nonsuit and that the appeal be dismissed, and later denied a motion to set aside the nonsuit, from which judgment claimant appeals. Error, and cause remanded.

The presumption that a husband intended a gift to his wife, where title to property was taken in her name, although the husband paid a large part of the consideration, is a mere presumption of fact, and may be rebutted.

George E. Beers and Frank S. Bishop, both of New Haven, for appellant.

Franklin Coeller, of New Haven, for appellees.

GAGER J.

This is an appeal from the doings of commissioners in denying the appellant's claim that certain real estate standing in the name of his deceased wife at the time of her death was affected with a resulting trust in his favor. The case was tried to the jury and upon the conclusion of the appellant's case the court, upon motion, ordered a nonsuit, and this appeal is based substantially upon the refusal of the court to set aside the judgment as of nonsuit.

The transcript of the evidence shows that the jury might reasonably have found the following material facts, to wit:

The appellant and his wife were married in 1881, in New York. Each had been previously married and had children living of the former marriage. The appellant and his second wife had no children. They came to New Haven to live in 1884 and for some time lived in an apartment. In the spring of 1890 they saw that the property described in the claim was for sale. Both examined the property, but agreed that the price of $5,500 was too high. Together they saw the owner, who would not reduce the price, and finally appellant and his wife agreed to take the property for $3,000 cash and a mortgage of $2,500. Appellant could then raise $1,900 and his wife $1,100 to pay together the $3,000, and they agreed to do this. The owner asked if the deed should be made in both their names, and said both appellant and his wife would have to go to the lawyer's office to have the deed so made. Appellant relied on this statement of the owner, but on account of his business as foreman for the telegraph company he could not go at the time set, and his wife said the deed could be changed later to both their names. Appellant went to his work and his wife went to the lawyer's office and the deed was made out in her name alone on April 8, 1890. She gave her temporary note for $3,000, with the understanding that she would take it up in a very few days, and she also gave her note and a mortgage for the balance of $2,500. The temporary note was given to the owner as a sort of security until she and her husband could raise the two amounts making up the $3,000. This was done within a few days, and the deed was recorded April 12, 1890.

The $3,000 to take up the temporary note consisted of $1,900 which the appellant undertook to raise on the cash payment and the $1,100 his wife undertook to raise as they had agreed together. The $1,900 so furnished by the appellant was not a loan or a gift to his wife, but money then furnished by him towards paying for the property purchased, pursuant to the agreement made with them when discussing their ability to purchase. The deed to the wife alone took that form solely because the owner had said both would have to go to the lawyer's and because the wife said the deed could be changed afterwards. The mortgage note of $2,500 was for five years from April 8, 1890, and as between appellant and his wife was not understood to be the obligation of the wife alone. The appellant and his wife discussed how they could pay it. The wife could raise $500, and he said he thought they could save enough to pay the balance. Appellant received a monthly salary and turned it over to his wife except as he, at times, paid interest or used it for personal expenses. She paid interest out of it at times, and out of the salary so turned over saved up enough so that she had on hand, when the note because due, the sum of $2,000, which, with her own $500, was paid to take up the mortgage note. This salary was not turned over to the wife as a gift or a loan, but to be used for general household purposes and to save the rest to pay the note, and the $2,000 so saved and used was appellant's money. Appellant and his wife lived together upon the property they had bought. Many times they had talked of the deed; he asked about straightening out the deed, and the wife often said, in substance, that when he could get the time she would go with him and have the deed changed. It would appear from the testimony that for some reason the wife was at times more or less indisposed and unable to go, and the appellant's business as foreman for the telegraph company kept him busy during the daytime; and for these reasons, and one reason and another not definitely expressed, the change agreed to was put off from time to time and finally never made. The wife died February 12, 1917. In 1916 in a conversation about the property she said to him that she had made a will in his favor; that he had paid in the $1,900 on the property and the $2,000 on the mortgage, and that he must get back what he had paid. It did not appear that any such will was made, and the wife's estate is being settled as an intestate estate represented insolvent.

The appellant claimed that his wife was a trustee for him to the extent that his money had paid for the property, to wit, $3,900, and that a resulting trust should be declared upon the property in his favor, and he also claimed damages.

The record shows that whether the jury would have found the facts stated above would depend upon their opinion of the credibility of the witnesses produced, and especially of the appellant, and to some extent, as well, upon inferences of fact. It is with us well settled that upon a motion for a nonsuit the court cannot pass upon the credibility of witnesses. " When the granting [of a nonsuit] must depend in any appreciable degree upon the court's passing upon the credibility of witnesses, the nonsuit should not be granted." Cook v. Morris, 66 Conn. 196, 33 A. 994; Fields v. Fields, 93 Conn. 96, 105 A. 347. The question then is whether, assuming the jury had found, as they might have found from the testimony presented, that the facts were as above stated, was the court warranted in ruling as matter of law that upon these facts the appellant was not entitled to have his case left to the jury.

The foundation claim of the appellant is that by paying $3,900 of the purchase price of the property deeded to the wife alone a resulting trust arose to that extent in the property standing in the wife's name. In Ward v. Ward, 59 Conn. at page 195, 22 A. 150, a resulting trust is described as follows:

" Resulting trusts are created by operation of law. They arise, notably, when the purchase money for property is paid by one and the legal title is taken in the name of another. In such a case a trust arises, at once, in favor of the person paying the money, and the holder of the legal title becomes a trustee for him. This result follows the natural presumption that a purchase will inure to him who furnishes the purchase price, and, of course, holds equally good when the title is taken to the purchaser and another jointly."

In 1 Perry on Trusts, § 124, it is said:

" There is another class of trusts which result in law from the acts of parties, whether they intended to create a trust or not, and they are aptly designated as resulting trusts."

In Bispham's Equity (8th Ed.) § 78, it is said that-

Resulting trusts " are said to result by operation or presumption of law from certain acts or relations of the parties from which an intention to create a trust is supposed to exist, and they are therefore called resulting or presumptive trusts."

In Barrows v. Bohan, 41 Conn. at page 283, it is said:

" The whole doctrine of resulting trusts rests upon a presumed agreement between the parties. When the actual agreement between the parties is identical with the agreement which the law will imply from circumstances, as in this case, there can be no conflict, and no danger that the real intention of the parties will be defeated by operation of law. Such an agreement, therefore, will not defeat a resulting trust."

In the present case the $3,000 cash to be paid was unquestionably made up of $1,900 of appellant's money and $1,100 of his wife's money. The $1,900 was not a gift or loan to the wife, and the wife attended at the lawyer's office and took the deed in her own name purely on account of his business engagement and the advice of the owner Here upon its face is the precise relationship where one pays a part of the purchase money and title is taken in the name of another, which, within all the definitions, is a most common ground of a resulting trust.

Perhaps we can best get at the grounds of objection by discussing the points upon which the ruling of the court was apparently made. The court stated, as one ground of nonsuit, that the appellant did not establish a definite and precise understanding between himself and his wife; that he had not attempted to state that there was an agreement between himself and his wife; and refers to Corr's Appeal, 62 Conn. 403, 26 A. 479. In this the court erred. What was said in the Corr Case was:

" The nature of the trust which the law implies from the circumstances is not changed because the parties have actually made an agreement between themselves respecting the real estate precisely

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