Howe v. Howe

• Decision Date: 21 October 1908
• Citation: 199 Mass. 598,85 N.E. 945
• Parties: HOWE et al. v. HOWE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 598

85 N.E. 945

HOWE et al. v. HOWE.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1908

Oct 21, 1908.

COUNSEL

Sheehan & Cutting, for appellant.

Arthur M. Taft and John B. Scott, for appellees.

OPINION

RUGG J.

This is a suit in equity by the widow, who is also the executrix of the will, of Elbridge G. Howe, and the other plaintiffs, who are devisees of interests in the real estate of said Elbridge, against the defendant, who is a son of said Elbridge, seeking to establish a resulting trust in their favor in certain real estate, the legal title to which was in the defendant. No appeal was taken from the order overruling the defendant's demurrer, so that no question raised by it is before us. There was a hearing before a justice of the superior court, who filed a memorandum of facts found by him and entered a decree establishing the trust, from which the defendant appealed. The defendant presented 40 prayers for rulings, all of which were refused, as either immaterial in view of the findings made or unsound in law. A considerable number of these have not been argued, and are treated as waived.

It is first argued that the bill of complaint contains no sufficient allegation of a resulting trust, and that hence the decree is not within the scope of the bill. It is distinctly averred that, at the time of the purchase of the real estate in question, the entire consideration was paid by Elbridge G. Howe, who had always thereafter until his death occupied and received all the rents and profits, and that the conveyance was made to one Mowry, who never occupied or used the premises or received any benefit therefrom, who held the title for the benefit of Elbridge G. Howe, and who thereafter at his request conveyed the estate to Walter H. Howe without consideration, it being understood and agreed between Elbridge G. and Walter H. Howe that the latter was holding the title for the use and benefit of the former, as Mowry had done; and that later, at the request of Elbridge G. Howe, said Walter H. conveyed the premises without consideration to the respondent, who never occupied or received any of the income or rent from them, but who held the legal title for the use and benefit of his father as said Mowry and Walter H. had done. This is in substance an averment of an initial purchase by the father, who paid the consideration, and subsequent conveyance by Mowry to Walter H. and by him to Frank E. with notice of the circumstances of the original transaction and assent to its terms. These allegations sufficiently state a resulting trust within the well recognized principle of equity jurisprudence, that where one buys and pays for real estate, but the conveyance of the title is to another, a trust results in favor of the one who pays the consideration, which may be enforced in equity against the grantee named in the deed, who is treated as subject to all the obligations of a trustee. Lufkin v. Jakeman, 188 Mass. 528, 74 N.E. 933; Skehill v. Abbott, 184 Mass. 145, 68 N.E. 37; Cogswell v. Hall, 185 Mass. 455, 70 N.E. 461. Such a trust may be established by parol, and the statute of frauds does not apply to such transactions. Livermore v. Aldrich, 5 Cush. 431; Rev. Laws, c. 147, § 1. Nor is it of any consequence that the consideration paid was not out of funds on hand by the original cestui que trust but from the proceeds of money borrowed by him even from the trustee, provided the fact of the loan is clear. McDonough v. O'Niel, 113 Mass. 92.

It was next argued that there was not sufficient evidence to warrant the finding stated in the memorandum that the money paid as consideration for the deed from Hayward to Mowry, though in large part received from Mowry, was in fact the money of Elbridge G. Howe. The memorandum, although apparently filed voluntarily and without the request of either party, stands on the same footing as a report of findings of fact made under Rev. Laws, c. 159, § 23, and will not be set aside unless plainly wrong. Cohen v. Nagle, 190 Mass. 4, 76 N.E. 276, 2 L. R. A. (N. S.) 964. The evidence upon this point, although not as full as might have been desired, cannot be said to be too slender to sustain the finding of the trial court, who saw the witnesses and heard their oral testimony, and was able better to weigh its effect than an appellate tribunal which can only read its transcript. The real estate in question was a farm, upon which Elbridge G. Howe had been living for many years before the first deed here in question, and on which he continued to reside until his death. A mortgage upon this farm had been foreclosed, and Elbridge G. Howe then sought out one Stockwell, and placed before him the situation and his circumstances, and told him 'he had got to raise some money to redeem the place.' The bargain for the purchase of the property was made by Stockwell acting solely for and in behalf of Elbridge G. Howe. Stockwell was employed apparently in part because of his familiarity with the value of wood and timber, a substantial amount of which was growing on the estate, and put his own personality and perhaps his responsibility to some extent into the transaction, as he made the sale of some if not all of the standing wood and timber and saw to the application of the money received from this source to the extent of $1,000 toward the purchase price of the farm, which was $3,000. E. G. Howe stated to Stockwell that he could raise the balance of $2,000, and this came finally in the form of a draft from Mowry. Throughout the negotiations Elbridge G. Howe acted as if he were principal and not agent for Mowry, and he was acting with reference to property, which he had before and was then using as his home. There was no evidence that Mowry ever made any claim that the property was his, and on the other hand there was evidence that he, being a nephew of E. G. Howe, recognized that he held it as trustee for his uncle, and was at all times willing to and did finally make such conveyance as his elder kinsman desired. This was enough to establish the trust between Mowry and E. G. Howe. It is not necessary to discuss the question of the admissibility of certain letters from Mowry to E. G. Howe by reason of the statement in the memorandum that they were not regarded as materially affecting the finding of the main fact that the purchase money was in fact furnished by E. G. Howe.

It is further argued that the subsequent conveyances to Walter H and Frank E. Howe, successively, were voluntary and that no trust resulted. This argument misconceives the meaning of a voluntary conveyance as applied to this branch of equity. It is true that the resulting trust arises out of the fact that one pays the consideration for the...