Johnson v. Johnson

• Decision Date: 29 October 1953
• Docket Number: 6 Div. 471
• Citation: Johnson v. Johnson, 259 Ala. 550, 67 So.2d 841 (Ala. 1953)
• Parties: JOHNSON v. JOHNSON.
• Court: Alabama Supreme Court

Page 841

67 So.2d 841

259 Ala. 550

JOHNSON v. JOHNSON.

6 Div. 471.

Supreme Court of Alabama.

Oct. 29, 1953.

Davis & Zeanah, Tuscaloosa, for appellant.

Jack H. McGuire and E. M. Ford, Tuscaloosa, for appellee.

SIMPSON, Justice.

Bill in equity by D. M. Johnson against his former wife, Lela Mae Johnson, to establish a resulting trust in real estate and for a sale of the property for division of proceeds. The decree sustained the bill and granted the relief and Mrs. Johnson has appealed.

The hearing was in open court, the witnesses testifying ore tenus and, although decision of the case has been subject to some difficulty in view of certain features of the evidence, under the rule of presumption in favor of the conclusion below we will affirm. Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 29 So.2d 298; Whitlow v. Moore, 246 Ala. 472, 21 So.2d 253.

Appellee was seventy-four years of age and appellant was about forty-three years of age when they intermarried in 1947. This was appellant's fourth marriage and after about four years of married life, not altogether harmonious, she obtained an uncontested divorce from appellee. Prior to her marriage she had contracted to purchase under a bond for title certain real property on Twenty-Sixth Avenue in the city of Tuscaloosa for a consideration of $2,250, of which amount she had paid $750; after her marriage to appellee he paid the balance due under the bond for title of $1500, appellant taking title in her own name, the understanding and agreement, however, according to appellee's testimony, being that that property was to be their home and that complainant would have an undivided one-half interest therein; on February 25, 1945, and in pursuance of the same agreement and plan, the foregoing property was traded to one Cleary and wife for property they owned on U. S. Highway No. 11 in Tuscaloosa County, and referred to in the testimony as the George Smothers property, the conveyance by the said Cleary and wife being made jointly to Mr. and Mrs. Johnson; thereafter the parties to this cause sold the last-mentioned property for a consideration of $4,100 and used a part of the purchase price, to wit, $1,750, in the purchase of the property in suit, executing a purchase money note and mortgage in the amount of, to wit, $1,000 for the balance. The note and mortgage were signed by both parties. The title to the last described property, however, was taken in the name of Mrs. Johnson alone, but Mr. Johnson testified that according to the previous arrangements between them the title should have been in their joint names, as had been the title to the previously acquired piece of property, and he thought such was the case until some eight or ten months after the transaction was closed; and that when he mentioned to his wife the fact that the title was in her alone, she said she was under the impression it was in their joint names and if he would keep up the payments on the mortgage she would have the deed changed to that effect.

The decree of the trial court appears to have established a resulting trust on two alternative theories: (1) because of an understanding and arrangement between the parties that the title would be taken in Mrs. Johnson and later a conveyance to a onehalf interest would be made to Mr. Johnson, or (2) on the theory that one-half of the net purchase money from the Smothers property which went into the purchase of the suit property belonged to Mr. Johnson and the deed should have been so drawn as to make the parties joint owners, but that to the contrary and without knowledge on the part of Mr. Johnson the deed was taken in his wife's name alone. The first alternative is without legal effect to authorize equity to establish a resulting trust, but the second is sustainable.

A resulting...