McQuay v. McQuay

Decision Date18 January 1928
Docket Number6212.
Citation263 P. 683,81 Mont. 311
PartiesMcQUAY v. McQUAY.
CourtMontana Supreme Court

Rehearing Denied Feb. 10, 1928.

Appeal from District Court, Silver Bow County; George Bourquin Judge.

Action by James McQuay against Ray McQuay. Judgment for plaintiff and defendant appeals. Affirmed.

John K Claxton and Philip O'Donnell, both of Butte, for appellant.

A. G. Shone and R. F. Gaines, both of Butte, for respondent.


By this action the plaintiff, James McQuay, sought to have his son, defendant Ray McQuay, declared a trustee of property of which plaintiff claimed to be the rightful owner.

The record discloses that in 1915 Kate Fogarty executed and delivered to plaintiff a grant deed conveying residence property in Butte for the sum of $950, paid by plaintiff. By express direction of plaintiff the name of the grantee was omitted from the deed, the plaintiff reserving the right to insert the name of a grantee therein when he should choose to do so. The reason for this was that plaintiff did not carry property in his own name. Years before, he had trouble with his wife over the matter of her joining with him in the execution of a deed designed to reconvey to a borrower property which the borrower had conveyed to plaintiff as security for a loan. Plaintiff determined that his wife should not have the chance to embarrass him in that way again.

After purchasing the property from Fogarty, plaintiff made extensive repairs and additions upon it at a cost of $2,400. Plaintiff himself worked upon the house and his son assisted when he was not in school. The son was 17 years old when the property was purchased. After the house was made habitable, the plaintiff leased it to tenants, among others to one McKenzie, who failed to pay the rent. In September, 1923, McKenzie was far in arrears. The plaintiff, having been obliged to move some miles away from the property in order to carry on his work as a mine foreman, and as his son was attending school and had the time to give to the collection of the rents, inserted his son's name in the deed, recorded it, and after its return to him, delivered it to his son, the defendant. The plaintiff testified that he talked over the rental situation with the defendant and suggested the insertion of the defendant's name in the deed so that the defendant could act as his agent, contemplating that if McKenzie did not pay the defendant could take proceedings against him, and that the defendant had agreed to that course. Some time after the delivery of the deed, defendant having failed to collect the rent from McKenzie, the parties, father and son, called upon Mr. Shone, an attorney at law, at the suggestion of the plaintiff, and talked over the situation with him. The plaintiff told Shone he wanted McKenzie out of the house because he was not receiving any rents and said that defendant was his agent. This testimony was corroborated by Shone, but denied by the defendant. The plaintiff testified that from 1923 forward to 1926, as well as from 1915 to 1923, he paid the taxes upon the property with his own money. He also paid the water rent for the house at all times. He made repairs upon the house himself; he paid for repairs made by others. The plaintiff collected the rentals upon the house at all times until about July, 1925, after which the defendant collected them and turned them over to plaintiff.

In 1926 there was a family quarrel. As a result of this quarrel the plaintiff demanded of the defendant that he convey the property to him, which the defendant refused to do. This suit followed.

Plaintiff alleged his ownership of the real property in controversy and his right to the possession thereof, the acquisition of the property by him from Fogarty in 1915, and the delivery to him of a deed in which no one was named as grantee, but with a right reserved in him to insert the name of a grantee; that after the receipt of the deed, but before recording it, he named as grantee therein Ray McQuay, the defendant, plaintiff's son, in whom as such, plaintiff, when naming him as grantee, reposed a special trust and confidence; that defendant has never paid any consideration for the property, either to the grantor Fogarty or to the plaintiff, but by agreement with plaintiff defendant consented that his name should be used as grantee to hold the legal title to the property in trust for the plaintiff until such time as the plaintiff should request its reconveyance to him, "and upon the express promise that he would convey said property to plaintiff or his nominee"; that about August 1, 1926, plaintiff demanded of defendant that he execute and deliver to him a good and sufficient instrument conveying the property, but defendant refused to execute the same and continued so to refuse; that defendant has not paid out or expended any sum of money or rendered any service of any kind for the benefit of or on account of the property, nor has defendant any claim in equity to or against the property; but if defendant has paid out or expended any sum of money for or on account of the property, or if he has rendered any services for the benefit of the property, plaintiff is ready, able and willing and offers either to repay the advances which may have been made, or the reasonable value of any services, as the court shall decree to be just and equitable. Plaintiff prayed that the court decree that defendant holds the legal title to the property in trust for the plaintiff, and that defendant be required to execute and deliver to plaintiff a good and sufficient conveyance therefor.

The defendant demurred to the complaint, alleging that it does not state facts sufficient to constitute a cause of action, and that it is uncertain, likewise ambiguous, in that it cannot be ascertained therefrom when the plaintiff named the defendant as grantee in the deed, nor whether the agreement between plaintiff and defendant was oral or in writing, nor when the plaintiff requested a reconveyance of the property. The court overruled the demurrer and the defendant answered. In addition to the general denials, the defendant alleged in effect that there was not any memorandum in writing, or written instrument of any description, subscribed by the defendant respecting the property; and that defendant, on September 29, 1923 (the date of the deed), acquired the property by gift from the plaintiff, in consideration of the natural love and affection then existing between the plaintiff and defendant. Other allegations of the answer need not be stated.

The affirmative allegations of the answer were traversed by reply.

The court found that all the allegations of plaintiff's complaint were true, and that those contained in defendant's answer were not true, except as to the possession of the property by the...

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