Mays v. Jackson

• Decision Date: 11 December 1940
• Docket Number: 36685
• Parties: Ben F. Mays v. T. E. Jackson, Appellant
• Court: Missouri Supreme Court

145 S.W.2d 392

346 Mo. 1224

Ben F. Mays v. T. E. Jackson, Appellant

No. 36685

Supreme Court of Missouri

December 11, 1940

Appeal from Ripley Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

Carl E. Williamson for appellant.

The plaintiff's theory must be that of a resulting trust. He alleges and introduces evidence to prove an oral agreement which is aside from any theory of express trust. There is lacking the essential element of a constructive trust, that of fraud. Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 452; Parker v. Blakeley, 338 Mo. 1206, 93 S.W.2d 981. A resulting trust can never be the result of an agreement, for if the trust be based on an agreement it becomes an express trust, if anything, and hence, unless in writing, is void. Bender v. Bender, 220 S.W. 930; Thomson v. Thomson, 211 S.W. 56; Ebert v Myers, 320 Mo. 808, 9 S.W.2d 1066; Parker v. Blakeley, 338 Mo. 1201; Sec. 3104, R. S. 1929. A resulting trust arises by operation of law from the facts in the case and never by operation of any agreement; from what the parties do, and never what they agree to do. Where an alleged trust must be established by agreement the agreement must be in writing, under Sec. 2253, Revised Statutes 1919 (3094, 1929), and it cannot be a resulting trust under Section 2264 (3105, R. S. 1929). Bender v. Bender, 220 S.W. 929; Thompson v. Thompson, 211 S.W. 52; Heil v. Heil, 184 Mo. 675; Price v. Kane, 112 Mo. 412. Since this is a cause in equity, the findings of the trial court are not conclusive upon this court, which may make its own findings under the evidence in the case. Wolfsberger v. Hoppenjon, 68 S.W.2d 814; Peniston v. Brick Co., 234 Mo. 698, 132 S.W. 532; Cuthbert v. Holmes, 14 S.W.2d 444. If the court adheres to plaintiff's theory, and finds a resulting trust, it must have been established by evidence so clear, cogent and sufficient as to establish such trust beyond a reasonable doubt. Norton v. Norton, 43 S.W.2d 1032; Parker v. Blakeley, 338 Mo. 1201, 93 S.W.2d 981; In re Title Guar. Trust Co., 113 S.W.2d 1053; Bender v. Bender, 281 Mo. 477, 220 S.W. 930; Richardson v. Champion, 143 Mo. 544, 45 S.W. 281; Ebert v. Meyers, 320 Mo. 804, 9 S.W.2d 1066.

George M. Booth and Chas B. Butler for appellee.

First, what is the difference in an express trust and a resulting trust? An express trust is a trust created by the intentional act of some party having dominion over the property, done with the intention of creating a trust; those created by operation of law where the acts of the parties may have had no intentional reference to the existence of any trust-implied, are resulting or constructive trusts. Pomeroy on Equity Jurisprudence, 415. Second, resulting trusts are of two general classes; First, where a purchase has been made and the legal estate is conveyed or transferred to one party, but the purchase price is paid by another party; and Second, where there is a gift by deed or will to a donee or grantee without pecuniary consideration coming from the grantee, but the intention appears by the instrument itself, that the legal and beneficial estates are to be separated and that the grantee or donee is either to enjoy no beneficial interest or only a part of it. Here clearly the trust falls within the first mentioned class. Sanford v. Vanpelt, 314 Mo. 175; Parker v. Blakely, 338 Mo. 1202. As a general rule the Statute of Frauds or statute prohibiting parol trusts applies only to trusts expressly created or declared by the parties; and resulting trusts, since they arise by operation of law from the facts creating the legal estate, are not affected by such statutes, actions out of which they arise rest in parol, and parol evidence is admissible to establish them. 39 Cyc., 108E. A trust is a relation between two persons, by virtue of which one of them holds property of the benefit of the other. Corby v. Corby, 85 Mo. 371. The real ownership of property is always with him who pays the purchase price, and where the legal title is in another, such other holds it in trust for him. Baumgartner v. Guessfield, 38 Mo. 36; Wrightman v. Rogers, 239 Mo. 417; In re Ferguson Estate, 124 Mo. 574; Bowen v. McKean, 82 Mo. 594. This is the universal rule where the parties are strangers to each other. It is also the universal rule, founded on justice and right, that where one person pays the purchase money for land and the title is conveyed to a stranger to him, a trust prima facie results in favor of the party who pays for the land. Plumb v. Cooper, 121 Mo. 668; Meyer Bros. Drug Co. v. White, 165 Mo. 136; Richardson v. Champion, 143 Mo. 538. Nor does the fact that the person furnishing the purchase money directs or consents or agrees to the title being placed in another to be held in trust make the trust an express trust rather than a resulting one. Richardson v. Champion, 148 Mo. 538. The defense of the Statute of Frauds is untenable, as the statute has no application to a resulting trust. Cloud v. Ivie, 28 Mo. 379; McMurray v. McMurray, 180 Mo. 534.

Dalton, C. Hyde and Dalton, CC., concur.

OPINION

DALTON

This action involves title to one acre of improved real estate in Ripley county. The petition is in two counts. The first seeks to establish a resulting trust and to have title divested from defendant and vested in plaintiff. The second count is in ejectment to recover possession of the premises. Both counts, one in equity and one at law, were tried before the court in one hearing, without the aid of a jury, and judgment was entered on each count for plaintiff. After motion for new trial had been filed and overruled, the defendant appealed.

The abstract of the record sets out the original petition and recites that the petition was subsequently amended to show that an agreement therein mentioned was an "oral contract." The amended petition is not set out. There is a recital that defendant demurred to the petition (counts not mentioned) on the ground that it did not state a cause of action. The demurrer is not set out. There is a recital that the demurrer was overruled and defendant filed an answer and plaintiff replied thereto, but the answer and reply are not set out. There is no reference in the abstract of the record to the content of either the answer or reply. Appellant does not assign error on the court's action in ruling the demurrer. Instead, error is assigned on the court's action "in admitting any evidence to support the plaintiff's petition for the reason that the petition is fatally defective and wholly inadequate in that it does not state a cause of action." (Italics ours.) The record fails to show that any such objection was made at the trial. The matter, therefore, is not properly before us for review.

Assuming, however, that the amended petition was like the original petition, except that the word "oral" was added immediately before the word "agreement," the first count alleges that one Pierce owned the particularly described real estate; that plaintiff desiring to purchase said real estate orally agreed with defendant to purchase the same from Pierce; that it was orally agreed that title be taken in defendant's name "until such time that plaintiff should demand said lands to be conveyed by defendant to plaintiff;" that plaintiff paid to defendant the sum of $ 75 for the purchase price thereof; that said purchase price was paid by defendant to Pierce; that the premises were conveyed by Pierce to defendant; that plaintiff "assumed ownership," built a filling station and a barn, drilled a well and equipped the station with tanks and pumps; that plaintiff demanded a deed to get record title; that defendant refused to convey to plaintiff; that defendant's deed is a cloud on plaintiff's title and the record of the deed a fraud on plaintiff; and that plaintiff has no adequate remedy at law. The prayer is that the record title to said real estate be divested from defendant and vested in plaintiff and for other relief. The second count, in ejectment, is in the usual form. It is not mentioned in appellant's brief.

Appellant contends that plaintiff's suit is based on an oral contract purporting to set up an express trust; that a resulting trust can never be the result of an agreement; and that the contract is void by reason of Sec. 3104, R. S. 1929, 3 Mo. Stat. Ann. 1928. The record does not show that said section was pleaded as a defense, but the record does show that appellant objected to testimony as to the alleged agreement "unless the same was in writing."

We think it is apparent that the first count was not intended as a suit for specific enforcement of an oral contract to convey land; nor as a suit to enforce an oral trust. The ultimate facts stated are that defendant, acting for and on behalf of plaintiff, purchased the real estate for plaintiff with funds furnished by plaintiff for that purpose and, in accordance with directions of plaintiff, took title in defendant's name for plaintiff; that plaintiff assumed ownership and made and paid for the improvements; that defendant refused to transfer the legal title to plaintiff on demand; and that the deed to defendant is a cloud on plaintiff's title.

In our opinion the first count of the petition states facts sufficient to constitute a cause of action for a resulting trust. [Scott v. Ferguson, 235 Mo. 576, 579, 139 S.W. 102; Butler v. Carpenter, 163 Mo. 597, 605, 63 S.W. 823.] The parol agreement alleged merely tends to show the relationship of the parties and the character of the transaction, while the resulting trust sought to be established would arise from the ultimate facts alleged to-wit, that the consideration was paid by plaintiff and the deed taken in the name of defendant. [Laughlin v. Laughlin, 291 Mo. 472, 479, 489, 237 S.W. 1024; Richardson v. Champion, 143 Mo....