Hickey v. Ross
| Decision Date | 12 March 1946 |
| Docket Number | 31996. |
| Citation | 172 P.2d 771,197 Okla. 543,1946 OK 83 |
| Parties | HICKEY et al. v. ROSS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 11, 1946.
Application for Leave to File Second Petition for Rehearing Denied Oct 8, 1946.
Appeal from District Court, Caddo County; Cham Jones, Judge.
Suit by Mary Laflin Hickey and others against Margaret Rigney Ross and another, to cancel a deed conveying oil and gas producing land and to recover an undivided four-sixths interest in the land. Judgment for defendants, and plaintiffs appeal.
Judgment reversed with directions.
Syllabus by the Court.
1. The mere payment of the purchase price under an oral contract to devise or convey land will not take the contract out of the statute of frauds so as to justify its specific performance.
2. Where the legal estate in real property is conveyed, but the intent appears or is inferred from the acts of the parties or the accompanying facts and circumstances that the beneficial interest is retained by the grantor, a trust is implied or results in favor of the grantor whom equity deems to be the real owner.
3. In order to establish a resulting trust in land the burden of proof is upon him who seeks its establishment and enforcement, and the evidence must be clear and convincing.
4. In reviewing a judgment in an action of equitable cognizance in which the evidence must be clear and convincing in order to establish a certain fact, such as the existence of a resulting trust, the Supreme Court will weigh the evidence to determine whether the same satisfies such standard of proof and will render or cause to be rendered such judgment as the trial court should have rendered.
5. The general rule, that a court of equity will not give relief to a grantor, his heirs, assigns or privies where the grantor has conveyed land, intending to create a secret trust with the beneficial interest in himself, for the purpose of defrauding creditors, will not be applied where it does not appear that there are actual creditors to defraud and it appears that the threatened litigation is only imaginary, and the transfer is without consideration.
6. Record examined, and held that the evidence clearly shows that the deed in question conveyed only the naked legal title and that the grantor retained the beneficial interest and certain of the residuary devisees of the grantor are entitled to a decree establishing and enforcing a resulting trust in the land conveyed as against the grantees who are also residuary devisees of the grantor.
Bailey & Hammerly, of Chickasha, and Clifford W. Clift, of Oklahoma Cilty, for plaintiffs in error.
Hatcher & Bond, of Chickasha, and Rainey, Flynn, Green & Anderson, of Oklahoma City, for defendants in error.
This is suit to cancel a deed to 160 acres of oil and gas producing land in Caddo County and to recover an undivided four-sixths interest in the land. The plaintiffs, Mary E. Hickey, Bertha A. Hays and Josephine E. Flood, are the daughters of George Laflin and Nannie Laflin. The other plaintiffs are the children of Clarence Laflin, deceased son of Nannie Laflin and (presumably) George Laflin. George Laflin died in 1897, and thereafter Nannie Laflin married James Rigney. The defendants, Margaret Ross and Catherine Ross, are the children of James Rigney and Nannie Rigney nee Laflin.
The petition contains two causes of action. The first cause of action is based upon the proposition that the deed, which plaintiffs seek to cancel, executed by Nannie Rigney in favor of the two defendants as grantees, was intended as a transfer of the bare legal title, and that Nannie Rigney retained control and possession of the land as well as the equitable title, and the plaintiffs asked that the court adjudge that the defendants be adjudged to hold the title in trust for Nannie Rigney and the plaintiffs and defendants as residuary devisees under her will, Nannie Rigney having died testate on December 18, 1942. In the second cause of action plaintiffs seek specific performance of an oral contract alleged to have been made by James Rigney and Nannie Rigney with the three older daughters of Nannie Rigney, plaintiffs herein, in July, 1913, wherein it was agreed that the land involved in this action, title to which stood in the name of James Rigney, should, upon the death of James Rigney, go in equal parts to the two defendants and the three daughters and one son of George Laflin and Nannie Rigney nee Laflin. The consideration for this agreement is alleged to have been that James Rigney, who was then guardian of the estates of Clarence and the three daughters of George Laflin and Nannie Rigney nee Laflin, and who had in his possession as such guardian some $16,000 as part of the estate left by George Laflin, desired to distribute the same, and there was a question as to whether Clarence was the son of George Laflin and was entitled to any of said money, and the three daughters, in consideration of such agreement, consented that one fourth of said sum be paid to Clarence instead of insisting that the entire sum be paid to them.
Evidence was introduced bearing upon each cause of action. Much of the evidence pertained to whether Clarence was the son of George Laflin and to the history of the family. The court found the issues in favor of the defendants as to both causes of action, and the plaintiffs appeal.
The plaintiffs argue the case under two propositions, (1) that the court erred in not decreeing specific performance of the contract referred to in the second cause of action, and (2) that the court erred in refusing to decree a resulting trust as prayed in the first cause of action.
1. We think the court did not err in refusing relief under the second cause of action. The only consideration claimed is a monetary one in that the three daughters waived the right to claim the sum of approximately $4,000 that was paid to Clarence. The alleged agreement was oral. We have many times held that, in order to take an oral contract to convey or devise land out of the statute of frauds and to justify its specific performance, payment of the consideration alone is not sufficient, but the promisee must have rendered services of a personal and peculiar character or must have taken possession and improved the land so that it would work a fraud upon the promisee not to enforce it. Pasley v. De Weese, 183 Okl. 424, 82 P.2d 1066; Miller v. Roberts, 140 Okl. 271, 282 P. 1104; Levy v. Yarbrough, 41 Okl. 16, 136 P. 1120.
2. On the question of whether the defendants should be decreed to hold the land for the benefit of their mother and her residuary devisees under a resulting trust, there are three rules of law to consider: (1) Where the legal estate in real property is conveyed, but the intent appears or is inferred from the terms of the grant or the acts of the parties or the accompanying facts and circumstances that the beneficial interest is retained by the grantor, a trust is implied or results in favor of the grantor whom equity deems to be the real owner; (2) in order to establish a resulting trust the burden of proof is upon him who seeks its establishment and enforcement, and the evidence must be clear and convincing; and (3) in reviewing a judgment in such a case the Supreme Court will weigh the evidence and determine whether the same fully satisfies such standard of proof and will render or cause to be rendered such judgment as the trial court should have rendered. Beall v. Fergeson, 177 Okl. 216, 58 P.2d 598; McCrory v. Evans, 192 Okl. 649, 138 P.2d 823.
We have carefully read and weighed the evidence, and are of the opinion that the plaintiffs met the...
To continue reading
Request your trial