Moore v. McKelvey, 20157
| Decision Date | 26 January 1976 |
| Docket Number | No. 20157,20157 |
| Citation | 266 S.C. 95,221 S.E.2d 780 |
| Court | South Carolina Supreme Court |
| Parties | Mary Jo McKelvey MOORE, Appellant, v. James L. McKELVEY, Respondent. |
James J. Raman and Kenneth M. Powell, Spartanburg, for appellant.
Loy E. Bryant, Spartanburg, for respondent.
Plaintiff seeks in this action to establish ownership, through a resulting trust, of a one-half interest in a house and 47 acre tract of land, the title to which is held in the name of the defendant, her former husband. The Master, to whom the cause was referred, held that plaintiff established her claim and recommended that the property be sold for an equal division between the parties, after giving defendant credit for mortgage payments of $3,000.00 made by him after the parties separated. The lower court disagreed with the Master's recommendation and held that the evidence failed to establish the resulting trust claimed by plaintiff, relying upon the case of Hodges v. Hodges, 243 S.C. 299, 133 S.E.2d 816. The plaintiff has appealed. We affirm.
The property in question was conveyed to defendant in 1961 for a consideration of $8,000.00, of which the sum of $1,500.00 was paid simultaneously with the execution of the deed and a note and purchase money mortgage given to secure the balance. According to the agreed Statement, the purchase contract, under which the sale was consummated, was signed only by the Seller and the defendant, but required that the wife (plaintiff) also sign the note for the unpaid balance, which she did.
Plaintiff thereafter deserted defendant in 1968 and he obtained a divorce in 1969 on the grounds of her adultery. More than five years after deserting defendant and subsequent to his completion of the payment of the balance due on the mortgage, together with the taxes, upkeep, insurance, etc., plaintiff, who had remarried in the meantime, instituted this action, seeking a one-half interest in the property on the theory of a resulting trust. She claimed that she contributed a portion of the down payment on the purchase price, signed the note for the unpaid balance, and subsequently contributed to the annual payments until they separated.
Plaintiff contends that a resulting trust arose in her favor by virtue of funds contributed by her toward the purchase of the property and the assumption, at the time of purchase, or an obligation to pay the balance of the purchase money.
It is well settled that the evidence to establish a resulting trust must be definite, clear, unequivocal and convincing. Green v. Green, 237 S.C. 424, 117 S.E.2d 583; Hodges v. Hodges, supra, 243 S.C. 299, 133 S.E.2d 816.
In Hodges the principles were stated that ...
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...the property (or committed to pay for the property), (2) with the intent to own it, (3) on the date of purchase. Moore v. McKelvey, 266 S.C. 95, 221 S.E.2d 780, 781 (1976) ; Surasky v. Weintraub , 90 S.C. 522, 73 S.E. 1029, 1031 (1912). The last requirement is important. South Carolina trus......
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