Haavik v. Farnell, 1 Div. 660

Citation87 So.2d 629,264 Ala. 326
Decision Date24 May 1956
Docket Number1 Div. 660
PartiesGeraldine Gans HAAVIK et al. v. Perry FARNELL.
CourtSupreme Court of Alabama

W. C. Taylor, Mobile, for appellants.

D. R. Coley, Jr., and Jos. M. Hocklander, Mobile, for appellee.

LAWSON, Justice.

The appeal is from a decree overruling demurrer to a bill in equity which was filed in the circuit court of Mobile County, in equity, on January 6, 1955, by Perry Farnell against his former wife, Geraldine Gans Haavik, and her sister, Gwendolyn Elwell.

Complainant seeks a decree investing title in him to Lots 20 and 21 in Cottage Hill Gardens, Mobile County, paper title to which is now in the respondent Elwell under conveyances from the respondent Haavik who, according to complainant, held title in trust for him, which fact, according to the averments of the bill, was well known to the respondent Elwell at the time she secured the conveyances referred to above. In regard to numerous items of personal property described in the bill and alleged to be in the possession of the respondent Haavik, the complainant prays the court to decree that the title thereto is vested in complainant and to order the respondent Haavik to deliver such property to complainant and that 'in the event said property or any part thereof, has been sold or disposed of by the said Respondent, that a judgment be entered in his behalf and against her for the value thereof and for the conversion of said property.'

The respondents addressed numerous grounds of demurrer to the bill as a whole and a number of grounds were addressed 'to that aspect of the bill * * * seeking a resulting trust.' In so far as Lot 21 is concerned the averments of the bill show that complainant seeks relief on the theory of a resulting trust inasmuch as it is averred that although the complainant paid all of the purchase price for the lot that he permitted the title to be taken in the name of Geraldine Gans Farnell who, as shown above, is the same person as the respondent Geraldine Gans Haavik. We have said that a resulting trust arises from a presumption of fact expressive of the supposed intention of the parties that the title to the land voluntarily taken in the name of another is held for the benefit of the one who furnishes the purchase price. The title is thus taken in the other by the complaining party himself or it is with his consent. Adams v. Griffin, 253 Ala. 371, 45 So.2d 22; Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178, 19 So.2d 538; Rose v. Gibson, 71 Ala. 35. But following the rule that pleadings must be construed most strongly against the pleader, the bill in the present shape is susceptible of the construction that the deed to Lot 21 was acquired prior to the divorce at a time when the complainant and the respondent were still living together as man and wife. In view of this relationship no presumption of resulting trust arises and the burden was on complainant to allege that Lot 21 was not a gift by him to his then wife. Swendick v. Swendick, 221 Ala. 337, 128 So. 593. In regard to Lot 21 the complainant does aver that he permitted the title to be taken in the name of his then wife 'believing that the title to the lot would be held by her in trust for him.' Such an averment does not overcome the presumption of a gift. Adair v. Adair, 258 Ala. 293, 62 So.2d 437. Ground 32 addressed to the aspect of the bill seeking a resulting trust takes the point that from aught appearing it was a gift on the part of complainant to the respondent Haavik. Aside from the fact that Ground 32 is not sufficiently referred to in brief filed here on behalf of appellants as to justify our consideration, we cannot consider that ground or any other ground of the demurrer addressed to the aspect of the bill seeking a resulting trust for the reason that the trial court overruled the demurrer generally, without referring to the demurrer or grounds thereof addressed to the aspect. Under our holding in Rowe v. Rowe, 256 Ala. 491, 55 So.2d 749, and our recent decisions following that holding, the effect of such a decree is a ruling on the demurrer to the bill as a whole, and hence only grounds going to the bill as a whole which are adequately argued in brief filed here on behalf of an appellant will be considered by us. See Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751; Williamson v. Burks, 262 Ala. 422, 79 So.2d 42; Davis v. Davis, 263 Ala. 42, 81 So.2d 314; Adams v. Woods, 263 Ala. 381, 82 So.2d 531; Marshall County Gas District v. City of Albertville, 263 Ala. 601, 83 So.2d 299; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309.

The averments of the bill as they relate to the acquisition of the deed to Lot 20 are substantially as follows: Complainant paid the sum of $75 to the owner of the lot as earnest money. The respondent Haavik, then the wife of complainant, had in her possession money and funds belonging to complainant, which the complainant directed her to use 'to pay the balance of the purchase price on said lot and to pay it over to the owner of said lot and secure the deed.' It does not appear whether the complainant directed his then wife to take title in his name, in her name, or whether he gave her any instructions in that respect, but it is alleged 'that she fraudulently caused her name, Geraldine Gans Farnell, to be inserted in the deed as the grantee.' There is no express averment to the effect that the wife used the funds of complainant as directed by him, but it is alleged: 'He further shows that the full consideration for said property and for the improvements thereon was paid by him and with his funds.' Neither the name of the owner nor the cost of the lot is averred.

In brief filed here on behalf of appellants, we gather that counsel has construed the averments just summarized above as showing that as to Lot 20 the complainant seeks to have the court declare a resulting trust in his favor. In brief filed here on behalf of appellee we are unable to determine the theory on which complainant was proceeding, but those averments do not show a resulting trust. A resulting trust is not shown when the title is taken in another without the consent of the one who furnishes the purchase money and who is...

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6 cases
  • Belcher v. Birmingham Trust National Bank
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 1, 1968
    ...The statute of limitations of ten years, Section 20, governs actions to establish resulting and constructive trusts. Haavik v. Farnell, 264 Ala. 326, 87 So. 2d 629. Section 20 like other sections is subject to the additional period allowed by Section 42. Haavik does not hold to the contrary......
  • Vickers v. Vickers, 1 Div. 48
    • United States
    • Supreme Court of Alabama
    • August 30, 1962
    ...55 So.2d 749, and only those grounds going to the bill as a whole which are argued in brief will be considered on review. Haavik v. Farnell, 264 Ala. 326, 87 So.2d 629. Since the bill here stated an equitable right to relief in specific performance, the demurrer was properly overruled. Dean......
  • Smith v. Smith, 2070335.
    • United States
    • Alabama Court of Civil Appeals
    • August 1, 2008
    ...846 So.2d at 368. The statute of limitations for seeking the imposition of a resulting trust in land is 10 years. Haavik v. Farnell, 264 Ala. 326, 87 So.2d 629 (1956); Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212 (1955); and Knowles v. Canant, 255 Ala. 331, 51 So.2d 355 (1951). "`When a t......
  • Mayo v. Gortney
    • United States
    • Supreme Court of Alabama
    • March 29, 1985
    ...a resulting trust will not be presumed when title is taken in the name of another without the consent of the payor. Haavik v. Farnell, 264 Ala. 326, 87 So.2d 629 (1956). This Court has held that the presumption of a resulting trust is rebutted where a husband or parent pays the purchase pri......
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