Marshall v. Marshall

• Decision Date: 05 June 1942
• Docket Number: 7 Div. 697.
• Citation: 8 So.2d 843,243 Ala. 169
• Parties: MARSHALL v. MARSHALL.
• Court: Alabama Supreme Court

8 So.2d 843

243 Ala. 169

MARSHALL v. MARSHALL.

7 Div. 697.

Supreme Court of Alabama

June 5, 1942

Rehearing Denied June 30, 1942.

The bill alleges (Paragraph 3) "that the cause of separation was adultery committed by said David Marshall with Sarah Batts and that he is now living with said Sarah Batts in Gadsden, Alabama, and that complainant and respondent are not living together since said separation, as husband and wife."

Hood Inzer, Martin & Suttle, of Gadsden, for appellant.

Motley & Motley, of Gadsden, for appellee.

GARDNER Chief Justice.

This cause was submitted for final decree on the bill, decree pro confesso against defendant and upon the evidence noted. The Chancellor granted complainant a divorce from her husband on the ground of adultery alleged in paragraph 3 and established a resulting trust in an one half interest in the house upon the averments of paragraph 4 and the proof in support of these paragraphs.

Any amendable defects in the bill were waived by failure to interpose demurrer. Wakefield v. Wakefield, 217 Ala 517, 116 So. 685. True, in order to sustain the decree no essential fact is to be supplied by intendment. 21 C. J. 801; 30 C.J.S., Equity, § 673; Hodges v. Birmingham Securities Co., 187 Ala. 290, 65 So. 920; National Building &amp Loan Association v. Ballard, 126 Ala. 155, 27 So. 971; Browder v. Board of Commissioners, 228 Ala. 687, 155 So. 366.

Upon the matter of divorce we think it clear enough the averments of the bill and the proof, which contained of course much more details of facts, sufficed to sustain the decree rendered. Coleman v. Coleman, 198 Ala. 225, 73 So. 473.

In paragraph 4 it is shown that complainant and defendant "jointly purchased the house and lot number 813 Plum Street in the City of Gadsden", and that complainant paid one half the purchase price, though title to the whole was taken in defendant's name. Though the averments in this respect were somewhat meager, yet they were sufficient to sustain the decree of a resulting trust.

The proof shows defendant violated his agreement with complainant when he took title to the entire lot in his own name. Of course, as argued by counsel for defendant the rule of resulting trust depends upon the equitable presumption of intention. Cawthon v. Jones, 216 Ala. 260, 113 So. 231; Montgomery v. McNutt, 214 Ala. 692, 108 So. 752. But it is also the well settled general rule that presumably "when land is purchased by one, with the money of another, a trust results to him, who advances the purchase money, though the title be taken in the name of the person, making the purchase, or in the name of a third person". Taliaferro v. Taliaferro's Heirs, 6 Ala. 404; 65 C.J. 386.

Such a presumption will not arise however, when the conveyance is to the wife with purchase by the husband, as he is considered under legal or moral obligation to make provision for her, and a gift will be presumed. 65 C.J. 403; Montgomery v. McNutt, supra. Otherwise, however, when conveyance is to the husband and the purchase money is paid by the wife. There is no such presumption of a gift, and the general rule has application. 30 C.J. 708.

The presumption giving rise here to a resulting trust is of course a rebuttable one, for after all as previously observed, it is a matter of intention. 65 C.J. 407. But in the instant case there...