Herlihy v. Coney

• Decision Date: 17 February 1905
• Citation: 59 A. 952,99 Me. 469
• Parties: HERLIHY v. CONEY et ux.
• Court: Maine Supreme Court

59 A. 952

99 Me. 469

HERLIHY

v. CONEY et ux.

Supreme Judicial Court of Maine.

Feb. 17, 1905.

(Official.)

Appeal from Supreme Judicial Court, Hancock County, in Equity.

Bill by Daniel H. Herlihy against John J. Coney and wife. Decree for plaintiff, and defendants appeal. Affirmed.

Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

E. S. Clark, for appellants.

L. B. Deasy, for appellee.

SAVAGE, J. Bill in equity to enforce a resulting trust in an undivided half interest in the Hotel Brewer property at Bar Harbor. The case comes here on the defendant's appeal. The plaintiff claims that, as the result of certain negotiations to which he was a party, the Hotel Brewer was purchased for $9,000; that $6,000 of the purchase money was raised on the notes of the defendants, secured by a mortgage of the property; that of the remaining $3,000, he and John J. Coney each paid one-half, and that in accordance with an arrangement between himself and John J. Coney the deed was taken in the name of defendant Catherine Coney, wife of John J. Coney, and sister of the plaintiff. From all this the plaintiff claims that an implied trust arose for his benefit in one-half of the property subject to the mortgage. He claims, indeed, that it was expressly agreed that he should have half of the property. But the express agreement was not in writing, and so not enforceable. The testimony of the plaintiff in one aspect is to the effect that, when they were arranging for the payment of the $3,000 in addition to the amount to be raised by the notes and mortgage, the plaintiff informed John J. Coney that he had only $400; that the latter offered to loan him the balance to make their contributions equal, and the offer was accepted. The plaintiff put in his $400 and John J. Coney put in $2,000, but $1,100 of this, the plaintiff claims, was advanced on his account, and was in fact a loan to him by Coney, although the money did not pass through the plaintiff's hands. According to plaintiff's evidence, it was agreed that Coney should have the entire management of the property.

The defendants deny that plaintiff had anything to do with the negotiations leading up to the purchase. They deny all except that the plaintiff did contribute $400 of the purchase money under such circumstances as to raise a resulting trust in the property to that extent. And the defendants further say that the plaintiff's own evidence shows that, even if the $1,100 was advanced for the plaintiff, no indebtedness was thereby created; that the plaintiff did not become debtor, and Coney creditor, as to the $1,100; that the plaintiff in no way became obligated to repay it to Coney, but that Coney was to repay himself out of the rents when received by him, and that he was to look, not to the plaintiff for repayment, but to the property only. And hence it is claimed that the $1,100 was not the plaintiff's, was not loaned to him, was not paid by him or for him, and that under such circumstances a resulting trust would not arise. This presents the one important question of fact argued before us. There is no dispute or uncertainty about the law.

A resulting trust arises by implication of law when the purchase money is paid by one person out of his own money, and the land is conveyed to another. Baker v. Vining, 30 Me. 121, 1 Am. Rep. 617; Stevens v. Stevens, 70 Me. 92. It may be paid by the cestui que trust himself. It may be paid by another for him. It may be paid for him by the trustee. Page v. Page, 8 N. H. 187; Boyd v. McLean, 1 Johns. Ch. 582; Kendall v. Mann, 11 Allen, 15. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must incur an obligation to repay, so...