Goldsberry v. Gentry

• Decision Date: 19 December 1883
• Docket Number: 10,890
• Citation: 92 Ind. 193
• Parties: Goldsberry, Administrator, v. Gentry et al
• Court: Indiana Supreme Court

92 Ind. 193

Goldsberry, Administrator, v. Gentry et al

No. 10,890

Supreme Court of Indiana

December 19, 1883

From the Madison Circuit Court.

The judgment is reversed, at the appellees' costs.

J. W Sansberry, M. A. Chipman and J. W. Sansberry, Jr., for appellant.

C. L Henry and H. C. Ryan, for appellees.

OPINION

Best C.

Martin S. Prewett died seized of certain real estate in Madison county, Indiana, and the appellant, as administrator of his estate, obtained an order to sell the same for the payment of debts. Thereafter the appellees, the only children and heirs at law of said decedent and of his deceased wife, who died intestate, brought this action to obtain a judgment, declaring them the owners of said land, and to restrain the appellant from selling it upon the order so obtained.

The complaint consisted of two paragraphs, to each of which a demurrer, for the want of facts, was overruled, after which an answer of five paragraphs was filed. The first was a general denial, and the others were special. A demurrer was sustained to the second, third and fourth, and a reply in denial of the fifth was filed. The issues were tried by the court, and, over a motion for a new trial, a judgment was rendered for the appellees, awarding them two-thirds of the land in accordance with the prayer of the complaint. These various rulings are assigned as error and will be noticed in the order of their statement.

The first paragraph of the complaint averred, in substance, that on the 29th day of January, 1862, the wife of Martin S. Prewett placed in his hands $ 600 of her separate means with which he agreed to purchase for her the land in the complaint described; that in pursuance of such agreement he did purchase said land and paid for it with the money so furnished by his wife; that said Martin S. Prewett "then and there, contrary to the wish and desire of his wife, and without her knowledge and consent, procured the deed of conveyance to be made to himself;" that he died on the day of -----, 187-, holding the legal title, and that the appellant, as administrator of his estate, is seeking to sell it for the payment of debts, etc. It is also averred that the wife died intestate, the equitable owner of said land, leaving the appellees her only children and heirs at law.

This paragraph was unquestionably good. It averred that the wife furnished the money, and the husband took the conveyance in his own name without her consent. This created a resulting trust in her favor, and thereafter she was the equitable owner of the land. Milner v. Hyland, 77 Ind. 458.

The suggestion of appellant, that in order to create a trust the deed must be taken without the knowledge of the person furnishing the money, finds no support in the statute. If the deed is taken without the consent of such person, the fact that he may know it at the time in no manner impairs his claim to the property. This paragraph was sufficient, and the demurrer properly overruled.

The second paragraph alleged the same facts as the first, except instead of alleging that the husband took the conveyance in his own name without the consent of his wife, it was averred that, by agreement and without any fraudulent intent, he took the conveyance in his own name, and was to hold the land in trust for his wife.

The appellant insists that this paragraph is bad because the agreement by which the husband was to hold the land in trust for the wife does not appear to have been in writing. This was unnecessary. Where the consideration is paid by one person and the conveyance is taken by another, under a verbal agreement, without fraud, to hold the land in trust for the former, a valid trust is created. This was expressly decided in Boyer v. Libey, 88 Ind. 235, where the authorities in support of the proposition are collected, and to which reference is made. This paragraph was good, and the demurrer properly overruled.

The second paragraph of the answer averred, in substance, that for twenty years prior to his death the decedent was in possession of said land, using and claiming it as his own; that during all this time he held the legal title, and the same appeared in his name upon the record of the county; that by reason of these facts he obtained credit and incurred debts to the amount of $ 3,000; that his wife knew these facts and did not claim any title to the land, but permitted her husband to obtain credit without in any way giving notice of her claim; that it will require all of said land to pay the decedent's debts, and that an order has already been obtained to sell it for such pupose.

This paragraph was insufficient. These creditors were not purchasers, nor had they acquired any lien upon the land. Nor did the facts averred constitute an estoppel. If otherwise sufficient, the failure to aver that credit was extended to the husband, in ignorance of the wife's claim, rendered the pleading radically defective. The demurrer was, therefore, properly sustained.

The third paragraph averred, in substance, that the wife's death occurred before the husband's; that the personal estate of the latter was insufficient to pay his debts, and the appellant filed his petition in the proper court to sell the land for such purpose; that all the appellees were made parties to such proceeding, and were duly notified as required by statute; that a guardian ad litem was appointed for the minor defendants, and that such proceedings were had as resulted in a judgment whereby the appellant was ordered to sell said land for the payment of the decedent's debts, and by reason of which the appellees are estopped to maintain this action.

According to the averments of this paragraph, upon the death of the wife, one-third of the land descended to the husband, and two-thirds to the...