Montgomery v. McNutt

• Decision Date: 27 May 1926
• Docket Number: 6 Div. 484
• Citation: 214 Ala. 692,108 So. 752
• Parties: MONTGOMERY v. McNUTT.
• Court: Alabama Supreme Court

108 So. 752

214 Ala. 692

MONTGOMERY v. McNUTT.

6 Div. 484

Supreme Court of Alabama

May 27, 1926

Rehearing Denied June 17, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by Mamie F. Montgomery, as administratrix of the estate of C.L. Montgomery, deceased, against Louvenia McNutt. From a decree for defendant, complainant appeals. Reversed and remanded.

F.D McArthur, of Birmingham, for appellant.

J.R Montgomery and W.H. Smith, both of Birmingham, for appellee.

SAYRE J.

Complainant's bill sought to establish a resulting trust in favor of the estate of her intestate in real property situate in Jefferson county. At the hearing on pleading and evidence, decree went for defendant. Complainant appeals.

There is a wealth of decisions on the subject involved. "The clear result of all the cases, without a single exception," says Judge Story, "is that the trust of the legal estate *** results to the man who advanced the purchase money. This is a general proposition, supported by all the cases, and there is nothing to contradict it." 3 Story's Eq. (14th Ed.) § 1597. The principle "has its origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money means the purchase for his own benefit, rather than for that of another, and that the conveyance in the name of the latter is a matter of convenience and arrangement between the parties for some collateral purpose." The trust arises by operation of law, and may be proved by parol, without offending the statute of frauds, which extends to and embraces only trusts created or declared by the parties, or the rule that a written instrument may not be contradicted varied, or altered by parol. Lee v. Browder, 51 Ala. 288. The distinction between such cases as Patton v. Beecher, 62 Ala. 579, and Brock v. Brock, 90 Ala. 86, 8 So. 11, 9 L.R.A. 287, where it was held that the mere parol promise by the grantee in a deed, absolute on its face, to hold for the use of the grantor, will not take the conveyance out of the statute, and the case here under consideration, is pointed out in Long v. Mechem, 142 Ala. 412. These principles are abundantly sustained by the decisions of this court. Harden v. Darwin, 66 Ala. 55; Lehman v. Lewis, 62 Ala. 129; Bibb v. Hunter, 79 Ala. 351; Heflin v. Heflin, 208 Ala. 69, 93 So. 719. The cases all agree that proof of payment by the party seeking the benefits of these principles, in order to lay the foundation of a resulting trust, must be clear and convincing. Pom.Eq.Jur. (4th Ed.) § 1041, note (b). In the case before us the proof was clear and convincing that complainant's intestate had furnished the money that went to purchase the property in litigation. Indeed that fact is not denied. And this suffices to show compliance with the rule stated last above.

If there had been no particular relation between complainant's intestate and defendant appellee, what has been said would be enough to dispose of this cause in favor of appellant. But intestate and defendant, persons of color, and, as children, members of a large family, were brother and sister, and the evidence on behalf of defendant was designed and tended to show that defendant, being much older than intestate, had in large part given him a mother's care until he went out from home to earn a livelihood, and that intestate, who lived in Birmingham where he accumulated some property, made annual visits to defendant, who lived on her own property in the vicinity of Knoxville, Tenn., and on such occasions made her presents of sums of money, ranging, according to this evidence, from $10 to $200 at a time. For appellant it was shown that intestate had been for many years engaged in the business of making appearance and appeal bonds for persons needing that kind of accommodation, that he had been accustomed to sign the name of his sister to such bonds along with his own, though he had no power of attorney to that end, nor was she aware of his practice, that he had all the while collected the rents from the property, paid taxes and for repairs thereon, that she knew nothing of all this; and complainant sought to have the court draw the inference that his collateral purpose was to serve the interest of his business by qualifying defendant as a sufficient surety on the bonds to which he signed her name, and that he had no purpose to make her a gift of the property. On this branch of the case we quote section 1041 of 3 Pom.Eq.Jur. as follows:

"In trusts of the second form, [that is] between family relatives, no evidence is necessary, in the first instance, to show the operation of the rule, since a presumption arises on the face of the transaction that a gift was intended, and that no trust results. This result, however, is merely a presumption, and may be overcome. Extrinsic evidence, either written or parol, is admissible on behalf of the husband or parent paying the price to rebut the presumption of an advancement or gift, and to show that a trust results; and, conversely, such evidence may be used to fortify and support the presumption. In general, this extrinsic evidence, to defeat an advancement and establish a trust as against the party to whom the property is conveyed or transferred and those holding under him, must consist of matters substantially contemporaneous with the purchase, conveyance, or transfer, so as to be fairly connected with the transaction."

Where the purchase price is paid by husband or father out of his own funds, and conveyance taken in the name of wife or child, the presumption is that a gift or advancement is intended. This presumption may be overcome by proof that no gift or advancement was intended. This also, according to the authorities, must be clearly and convincingly shown in such cases. It is the intention of the parties in such cases that must control, and what that intention was may be the subject of proof.

"Thus, if there is any circumstance accompanying the purchase which explains why it was taken in the wife's or child's name, and that it was not intended to be an advancement, but was intended to be a trust for the husband or father, the presumption of an advancement will be rebutted, and the inference of a trust will be established." 1 Perry on Trusts (5th

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