Mills v. Thomas

• Decision Date: 11 June 1924
• Docket Number: No. 24704.,24704.
• Citation: 144 N.E. 412,194 Ind. 648
• Parties: MILLS et al. v. THOMAS.
• Court: Indiana Supreme Court

194 Ind. 648

144 N.E. 412

MILLS et al.

v.THOMAS.

No. 24704.

Supreme Court of Indiana.

June 11, 1924.

Appeal from Circuit Court, Boone County; F. E. Hutchinson, Judge.

Suit by Clyde C. Thomas against Clara J. Mills and another. Judgment for plaintiff, and defendants appealed to the Appellate Court, which affirmed (141 N. E. 314), and transferred case under Burns' Ann. St. 1914, § 1394, cl. 2. Opinion of Appellate Court superseded and judgment affirmed.

O. E. Gulley, of Danville, for appellants.

E. M. Blessing, of Danville, and Ira M. Sharp of Lebanon, for appellee.

GAUSE, J.

Appellee brought this action against appellants to recover the undivided one-half of an 80-acre farm, the legal title to which was in appellant Clara J. Mills.

No question is raised as to the sufficiency of the complaint, so it will not be necessary to quote from it at length.

It is alleged that on January 3, 1913, appellee and appellant Clara J. Mills agreed to purchase and did purchase of one Ed Humston the farm in dispute for the consideration of $12,600; that appellee paid thereon the sum of $4,000 and appellant Clara J. Mills paid a like sum; that there was a mortgage for $4,600 on said farm which the purchasers assumed. It is alleged that appellee's part of said purchase money was paid as follows: That said appellant had possession of $1,200 of money belonging to appellee, and that appellee paid to said appellant $2,800 in cash, all of which was used in paying for said land; that all of said land was deeded to said appellant; and that appellee's name was omitted from such deed without his consent.

It is alleged that appellee took possession of said land and made valuable and lasting improvements thereon, with appellants' knowledge; that appellee operated said farm, and paid taxes and insurance thereon, and has paid on said mortgage principal and interest in the sum of $2,500. It is alleged that appellee demanded of appellants a deed for his interest therein, which was refused.

The prayer was that appellants be required to keep said agreement, and execute and deliver to appellee a good and sufficient deed to said real estate, subject to one-half the mortgage thereon, and that a commissioner be appointed to make such conveyance, and for all other proper relief. The answer was a general denial. There was a trial by the court and a finding for appellee.

The judgment was that the appellee was the owner in fee simple of an undivided one-half of said land; that the legal title to the same was in said Clara J. Mills, who held the same in trust for appellee; and that appellee's interest therein was subject to $900 of mortgage indebtedness existing on said land. A commissioner was appointed to execute a conveyance in accordance with the finding and judgment.

Appellants filed a motion for a new trial, in which certain rulings of the court in the admission and rejection of evidence were challenged, and also that the decision of the court was not sustained by sufficient evidence, and that it was contrary to law. The only error assigned is based upon the overruling of the motion for a new trial. Appellants say that the theory of the complaint is for the specific performance of a contract. It is apparent from the finding and judgment that the court below construed it as an action to establish a resulting trust.

[1] The allegations of the complaint are sufficient to warrant this construction. It is averred that appellee furnished money with which the consideration for one-half of said land was paid, and that the entire title was taken in the name of Clara J. Mills without the consent of appellee. This is sufficient to establish a trust in land under section 4019, Burns' 1914. In view of these averments of the complaint, and since the judgment of the lower court followed this theory, we will adhere to the same theory. Comegys v. Emerick (1893) 134 Ind. 148, 33 N. E. 899, 39 Am. St. Rep. 245;Muncie Pulp. Co. v. Martin (1904) 164 Ind. 30, 72 N. E. 882.

There was evidence fairly and reasonably tending to show the following facts, some of which are disputed and others not:

Appellee is the son-in-law of appellants. That Mrs. Mills and her sister inherited 88 acres of land from their mother, and by exchange of deeds Mrs. Mills became the owner of 40 acres with the improvements, and the sister received 48 acres without any inprovements. This farm was known as the “Chadwick farm.” That in 1910 appellant Clara J. Mills purchased from her sister the 48 acres upon which there were no improvements for $4,000, giving a mortgage for the same upon the entire farm. That at this time appellee lived on said farm as a tenant. That Mrs. Mills proposed that appellee buy the 48 acres from her sister, but that appellee said he could not buy it, unless he sold his personal property, and that he preferred the 40 acres with the improvements. That Mrs. Mills told appellee she would buy the 48 acres, and she would help him get the money, and he could pay the interest and taxes and keep the farm up, and when he had paid for the 40 acres she would deed it to him. That it was necessary to have the title quieted, and he paid one-half the cost thereof, paid $240 a year interest on the $4,000 borrowed, made some improvements and paid the taxes. In 1912 the Chadwick farm was sold for a little more than $11,000. That the 40 acres and the 48 acres were of about equal value. The evidence is not clear as to the amount of the profit realized on this sale, figuring the value at the time Mrs. Mills purchased her sister's part at $8,000, but appellants say it made a profit of about $2,600. It also appears that there were some expenses, such as quieting the title. That appellee was claiming one-half of the profit of this sale at the time and after it was made, and that, after such sale was consummated, appellee asked Mrs. Mills for his part thereof, but that Mrs. Mills said to appellee, “Just let it go as it is, and we will buy another farm somewhere and buy it in partnership and apply it on the farm,” also, she said she would allow him his part.

That in 1913 Mrs. Mills and appellee agreed to buy the farm in dispute, known as the “Humston farm.” That the purchase price therefor was $12,600. That the same was paid as follows: A mortgage of $4,600 was assumed, and Mrs. Mills paid $4,000 of her money, appellee furnished $2,800 in cash, and appellee's part of the profit from the sale of the Chadwick farm was applied thereon. That Mrs. Mills, without the knowledge or consent of appellee, took the title to all of said land in her own name. That Mrs. Mills stated before the sale of the Chadwick farm that appellee owned 40 acres of that farm, and after the purchase of the Humston farm she told several persons that he owned one-half of it.

It is the contention of appellants that the evidence does not sustain the decision, because there was no written contract, and that appellee is attempting to enforce a parol trust in land in contravention of the statute.

[2] Under section 4019, Burns' 1914, a trust in lands may result, although there is no writing creating the same, where the grantee has taken an absolute conveyance in his...