Green v. Green

• Decision Date: 15 December 1960
• Docket Number: No. 17727,17727
• Court: South Carolina Supreme Court
• Parties: Dorothy R. GREEN, Respondent, v. Charles E. GREEN, Appellant.

Page 583

117 S.E.2d 583

237 S.C. 424

Dorothy R. GREEN, Respondent, v. Charles E. GREEN, Appellant.

No. 17727.

Supreme Court of South Carolina.

Dec. 15, 1960.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Price & Poag, Greenville, for respondent.

MOSS, Justice.

Charles E. Green, the appellant herein, and Dorothy R. Green, the respondent herein, were married in 1937, and divorced in 1958. It appears from the undisputed evidence in this case that on February 20, 1943, the appellant purchased a house and lot on Carroll Lane in Greenville, South Carolina, and title thereto was taken in the names of both the husband, Charles E. Green, and his wife, Dorothy R. Green, as tenants in common. The purchase price of the house and lot was $5,750. A mortgage for $4,700 upon the house and lot was executed by the parties to First Federal Savings and Loan Association, and the sum obtained applied upon the purchase price. A second mortgage was executed by the parties to the seller of said house and lot for the sum of $350. These mortgages were to be paid in monthly installments, and the appellant made all of such payments. It is an admitted fact in the record that the respondent furnished no part of the purchase price nor did she furnish the money for or make any of the installment payments. It appears that there were born of the marriage three children and in 1950 it became evident that the home located on the above described property was inadequate in size, the same being a two bedroom dwelling, for the family of the parties. It was decided to acquire a different lot and to build a larger and more adequate dwelling, consonant with the needs of the Green family. In order to pay the purchase price of the new lot, the parties remortgaged the original lot to First Federal Savings and Loan Association, thereby refinancing the existing mortgage upon such premises and also obtaining $2,854.28, which was used in the payment of a part of the purchase price of the new lot. The new lot, also located on Carroll Lane, was purchased on September 18, 1950, for the sum of $3,000 and title thereto was taken solely in the name of Charles E. Green. The deed to the new lot was promptly recorded in the Register of Mesne Conveyances office and Greenville County, South Carolina. This original deed was brought to the home of the parties and placed in a box in which various papers of the parties were kept.

It further appears that on January 19, 1951, which was about four months after the purchase of the new lot, and the taking of the deed thereto in the appellant's name alone, that the original house and lot were sold by the parties. The net proceeds of this sale were $4,921.16 and these funds were deposited in the joint bank account of the parties.

Some months later the construction of a dwelling on the new lot was commenced, and on May 28, 1951, a construction loan in the sum of $8,500 was obtained, and the respondent renounced dower upon the mortgage securing such. On September 26, 1951, a permanent loan of $16,000 was secured from C. Douglas Wilson & Company, the principal of this loan was payable in monthly installments. The respondent duly renounced dower on this mortgage. It appears that the appellant either made or furnished the money for the payment of all the monthly installments on this mortgage.

The respondent, in her complaint, asserts that by virtue of the fact that the funds derived from the mortgaging of the home jointly owned by her and the appellant, and the funds derived from the sale of the home jointly owned by the parties, went into the purchase price of the lot and the cost of the construction of the home erected thereon, entitled her to either a joint interest in the new house and lot or entitled her to a judgment for her monetary contribution thereto, and also that the Court should decree a resulting trust in her favor. The respondent demanded that the Court order the appellant to pay to her the amount of her monetary contribution out of the proceeds of any sale of the new house and lot.

The appellant duly filed an answer to the complaint asserting that was no resulting trust in favor of the respondent and alleging, on the contrary, that he was the sole owner of the new house and lot and that he alone held title thereto for eight years and made all the monthly installment payments due on a mortgage thereon. He further contended that, if the respondent were entitled to any sum, it would be limited to only one-half of the proceeds of the funds obtained by the refinancing mortgage on the original lot, which said sum went to purchase the new lot. The appellant contended that in order for a resulting trust to arise, that it must arise because of a contribution of money made by the respondent at the time of the purchase of the new lot and not at any subsequent time.

By an agreement of the parties, this case was heard by the Honorable W. B. McGowan, Judge of the Greenville County Court. At the trial of the case testimony was taken and various exhibits offered in evidence. Thereafter, on October 6, 1959, the trial Judge filed his Order holding that the respondent had, by way of resulting trust, an interest in the new property to the extent of $3,887.72. He further held that the proceeds derived from the refinancing mortgage on the original lot went into the purchase price of the new lot and that the net proceeds of the sale of the original house and lot went into the construction of the new home on the new lot, and that this was done pursuant to an agreement between the parties.

During the pendency of this cause, the new house and lot were sold for a total sum of $25,000, and under an appropriate order of the Court, one-half of the net proceeds of the sale, or $5,671.43, was deposited with the Clerk of the Court awaiting the further order of the Court. The trial Judge directed the Clerk of the Court to disburse the $5,671.43 so deposited by paying to the respondent $3,887.72, and that the remainder, in the amount of $1,783.71, be paid to the appellant.

Timely notice of intention to appeal was given by the appellant from the Order of the trial Judge.

It is well to determine how the trial Judge arrived at the amount which he awarded to the respondent. It is an admitted fact that by the refinancing mortgage given to the First Federal Savings and Loan Association by the parties, that they obtained $2,854.28, and of the sum so obtained $1,427.14 belonged to the respondent, and this was invested in the purchase of the new lot. The net proceeds from the sale of the old house and lot were $4,921.16, of which $2,460.58 was the property of the respondent. This sum was invested in the construction of the new house on the lot, title to which was in the name of the appellant. The sum of the two items, to which the respondent was entitled, amounts to $3,887.72. It was a question of fact for the trial Judge to determine as to whether this total sum went into the purchase of the new lot and the construction of the new house thereon. He has determined this fact in favor of the respondent and there is evidence to support such finding.

The general rule is that when real estate is conveyed to one person and the consideration paid by another, it is presumed that the party who pays the purchase money intended a benefit to himself, and accordingly a resulting trust is raised in his behalf. But, when the conveyance is taken to a wife, for whom the purchaser is under legal obligation to provide, no such presumption attaches. On the contrary, the presumption in such case is that the purchase was designed as a gift or advancement to the person to whom the conveyance is made. This presumption, however, is one of fact and not of law and may be rebutted by parol evidence or circumstances showing a contrary intention. Caulk v. Caulk, 211 S.C. 57, 43 S.E.2d 600; Legendre et al. v. South Carolina Tax Commission, 215 S.C. 514, 56 S.E.2d 336; Bates v. Bates et al., 213 S.C. 26, 48 S.E.2d 612. In this case the appellant directed that title to the original house and lot be placed in the joint names of the parties, even though the appellant paid the purchase price thereof. In these circumstances the law is settled that the part of the purchase price contributed by the appellant is presumed to be a gift to the respondent, and there is nothing in the evidence in this case to rebut the presumption. Hence, the conclusion is inevitable that the respondent had an undivided one-half interest in the original house and lot and when mortgaged or sold she was entitled to one-half of the proceeds thereof.

In the case of Privette v. Garrison et al., 235 S.C. 119, 110 S.E.2d 17, 21, this Court said:

'While a resulting trust may be proven by parol, the evidence to establish it must be clear, definite and convincing. Rogers v. Rogers, 52 S.C. 388, 29 S.E. 812. And where the claim to such a trust is based upon payment of the purchase money or some definite portion of it by the beneficiary, such payment must be clearly and unmistakably shown to have been so made at or before the time of the purchase. Hutto v. Hutto, 187 S.C. 36, 196 S.E. 369. * * *'

It is the position of the appellant that the trial Judge was in error in finding that there was a resulting trust in favor of the respondent. He submits that there is no competent, clear, definite, unequivocal, satisfactory and convincing evidence to support such finding. We are convinced from a reading of the record that there is clear, definite, and convincing evidence to establish that the sum of $2,854.28, which said sum was obtained by a refinancing mortgage on the original house and lot, one-half of said sum being owned by the respondent, was used to purchase the new lot. The evidence shows that this sum was placed in a joint bank account of the parties and four days later the appellant purchased the new lot and the proceeds of the refinancing were used to purchase such lot. The appellant...