Hutto v. Hutto

• Decision Date: 05 April 1938
• Docket Number: 14657.
• Citation: 196 S.E. 369,187 S.C. 36
• Parties: HUTTO v. HUTTO.
• Court: South Carolina Supreme Court

196 S.E. 369

187 S.C. 36

HUTTO v. HUTTO.

No. 14657.

Supreme Court of South Carolina

April 5, 1938

Appeal from Common Pleas Circuit Court of Calhoun County; G. Duncan Bellinger, Judge.

Suit by F. O. Hutto against Mrs. Pearl E. Hutto for partition of real estate left by S. P. Hutto, deceased, wherein plaintiff claimed to be a beneficiary under a resulting trust as to a certain tract purchased by deceased. From a judgment of the circuit court reversing a finding of the special referee in favor of plaintiff, plaintiff appeals.

Affirmed.

W. R Symmes, of St. Matthews, for appellant.

L Marion Gressette, of St. Matthews, for respondent.

FISHBURNE Justice.

On November 27, 1916, S. P. Hutto, late of the county of Calhoun, acquired title to a tract of land in that county containing 146 acres, known as the Brandenburg tract, to which he took title in his name.

S. P Hutto carried on extensive farming operations, with his brother, F. O. Hutto, and they jointly owned various tracts of farming lands and several building lots. Title to the tracts was held by the two brothers as tenants in common, but the title to the lots was in the name of S. P. Hutto alone. Subsequent to the year 1916, when the latter acquired title to the Brandenburg tract, he conveyed to his brother, F. O. Hutto, by deed or deeds, a one-half undivided interest in all of the lots except one upon which was located a store building. It is admitted that S. P. Hutto was the sole owner of the store house property. At no time, however, did S. P. Hutto convey to his brother, F. O. Hutto, any interest in the Brandenburg tract.

S. P. Hutto died intestate on or about December 18, 1936, leaving as his heirs at law and distributees under the statute his widow, the defendant, Pearl E. Hutto, his father, J. O. Hutto, and several sisters and brothers.

This action was brought for a partition of all of the real estate left by S. P. Hutto, deceased.

No contention was made by any of the parties as to any tract embraced in the proceeding except the 146 acres above referred to, and as to that tract F. O. Hutto claims that he is entitled to an undivided one-half thereof by virtue of a resulting trust. He alleges that he and his brother, S. P. Hutto, purchased this land jointly, and that he paid a portion of the purchase money in cash or its equivalent.

The cause was referred to a special referee, who upheld the contention of the plaintiff. The circuit court, upon exceptions by the defendant, Pearl E. Hutto, reversed the special referee, and held that S. P. Hutto acquired title to the tract in question, unaffected by any trust in favor of the plaintiff. The plaintiff now appeals to this court from the decree of the lower court.

The case makes several questions, but in the oral argument before us counsel for the appellant stated that if this court should hold that the portion of the purchase money alleged to have been paid by F. O. Hutto must have been paid by him at or before the purchase of the Brandenburg tract, in order to establish a resulting trust in his favor, then no other exceptions need be considered. By this statement, the appellant in effect concedes that whatever money may have been paid by him on the purchase price of the tract in question was paid after the sale had been completed and title acquired by S. P. Hutto. The testimony very clearly bears this out.

The record shows that the consideration paid for the Brandenburg tract was $5,000; and that, to secure the credit portion of the purchase price, S. P. Hutto executed and delivered to W. H. Whetstone, the grantor, a mortgage covering the tract, in the sum of $3,400. This mortgage was paid within two years from its date. The appellant testified that he did not know how much his brother, S. P. Hutto, paid for the place, nor how the payments were made; that he had nothing to do with paying the Whetstone mortgage; that he gave his brother $600 to apply on the debt about two weeks after the transaction was closed. We are asked to assume from testimony of the vaguest and most indefinite character that further contributions were made by F. O. Hutto on the purchase price from his share of the profits derived from joint farming operations.

There was no evidence of any kind, directly or indirectly, that F. O. Hutto paid the purchase money or any part of it, at the time his brother bought this land.

It is well settled in this state that, in order to establish a resulting trust in lands conveyed to the grantee, it is necessary and indispensable that an actual payment of the purchase money, or some definite portion of it, should be clearly proved to have been made by the cestui que trust, at the time of the purchase. Ex parte Trenholm, 19 S.C. 126; Richardson v. Day, 20 S.C. 412, 418; Mims v. Chandler, 21 S.C. 480, 491; Brown v. Cave, 23 S.C. 251, 257; Boozer v. Teague, 27 S.C. 348, 368, 3 S.E. 551; Watson v. Young, 30 S.C. 144, 151, 8 S.E. 706; Jones v. Hughey, 46 S.C. 193, 196, 24 S.E. 178; Gaines v. Drakeford, 51 S.C. 37, 38, 27 S.E. 960; Rogers v. Rogers , 52 S.C. 388, 391, 29 S.E. 812; Green v. Green, 56 S.C. 193, 213, 34 S.E. 249, 46 L.R.A. 525; Miller v. Saxton, 75 S.C. 237, 245, 55 S.E. 310; Surasky v. Weintraub, 90 S.C. 522, 532, 73 S.E. 1029.

Mr Pomeroy says (3 Pom.Eq.Jur., § 1037) that, in order for a resulting trust to arise, "it is absolutely indispensable that the payment should be actually made by the beneficiary, or that an absolute obligation to pay should be incurred by him as a part of the original transaction to purchase, at or before...