George v. Donohue

• Decision Date: 04 November 1935
• Docket Number: No. 4-4016.,4-4016.
• Citation: 86 S.W.2d 1108
• Parties: GEORGE v. DONOHUE et al.
• Court: Arkansas Supreme Court

86 S.W.2d 1108

GEORGE v. DONOHUE et al.

No. 4-4016.

Supreme Court of Arkansas.

November 4, 1935.

Appeal from Miller Chancery Court; Pratt P. Bacon, Chancellor.

Suit by Ed George against R. J. Donohue and others. From a decree dismissing the complaint, the complainant appeals.

Affirmed.

Will Steel and Frank S. Quinn, both of Texarkana, for appellant.

James D. Head, of Texarkana, for appellees.

McHANEY, Justice.

This is an appeal from a decree of the chancery court sustaining a demurrer to appellant's amended and substituted complaint against appellees, wherein he refused to plead further and his complaint was dismissed for want of equity. The question is: Did the complaint state a cause of action? The substance of the complaint is that appellant and appellee R. J. Donohue had entered into an oral agreement that they would obtain a lease, under an oral option from the Texarkana Oil Corporation by getting some one who would pay $10,000 therefor, for the purpose of drilling a well, and reserve unto appellant and said appellee a 10/32 interest therein, or 5/32 to each of them, and that said appellee breached this agreement by procuring his brother, the appellee Ed or E. J. Donohue, to acquire said lease by assignment from the Texarkana Oil Corporation, without reserving to appellant and appellee R. J. Donohue said 10/32 interest. The complaint further alleged that said appellee fraudulently caused this lease to be assigned to his brother, E. J. Donohue, for the purpose of depriving the appellant of his interest therein or the profits arising therefrom. The prayer was that appellant's interest and right in and to a 10/32 interest in said oil and gas lease be declared and established and that appellee E. J. Donohue be declared to hold said interest in trust for him and said R. J. Donohue. It was further prayed that if said R. J. Donohue secured a lesser interest in said lease than a 10/32, or any consideration other than an interest in said lease, that he be required to account therefor to appellant.

We agree with the trial court that no cause of action was stated in this complaint for equitable relief. The complaint shows on its face that appellant and R. J. Donohue were not to furnish any part of the purchase price of said lease, but only that they should procure a purchaser. No fraud is alleged in the acquisition of the lease by E. J. Donohue, but it is charged that both appellees knowing of the oral agreement between appellant and R. J. Donohue fraudulently caused said lease to be assigned to E. J. Donohue for the purpose of depriving him of any interest therein or any profits arising therefrom. Neither appellant nor R. J. Donohue ever owned the lease or any interest therein, the allegation being that they had an oral option to buy and that they entered into an oral agreement whereby they would sell to some third party said lease for $10,000, to drill a well, reserving a 10/32 interest to themselves. It appears, therefore, that appellant is seeking to impress upon the lease from the Texarkana Oil Corporation to E. J. Donohue an implied trust based on his alleged oral agreement with R. J. Donohue. We think such trust may not be established by parol testimony, but falls within the statute of frauds. We have had many decisions to that effect. In Bland v. Talley, 50 Ark. 71, 6 S. W. 234, it was held, to quote the headnotes: "A parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds, and cannot create a resulting trust. On a bill to establish a resulting trust in a tract of land, the plaintiff in effect, proved that he and W. and J. entered into a parol agreement to purchase the land on a credit, pay for it out of their joint labor, and that the three should own it, when paid for, in equal shares; that W. purchased the land in his own name, furnished all the money and took the title to himself. Held: That the agreement was void by the statute of frauds and there was no trust in favor of the plaintiff and J." According to the rule laid down in this case and subsequently consistently followed, if R. J. Donohue had taken the title to said lease in his own name instead of the name of his brother, E. J. Donohue, he would have been protected in his title against the claim of appellant by reason of the statute of frauds. See, also, Robbins v. Kimball, 55 Ark. 414, 18 S. W. 457, 29 Am. St. Rep. 45; Roberts v. Pratt, 147 Ark. 575, 228 S. W. 379; Eason v. Wheeler, 167 Ark. 320, 268 S. W. 29.

Nor can we agree that the facts in the complaint establish a trust ex maleficio for the reason that the complaint fails to allege that there was any fraud in the conveyance from the Texarkana Oil Corporation to E. J. Donohue. In LaCotts v. LaCotts, 109 Ark. 335, 159...