Moore v. Moore

• Decision Date: 18 May 1896
• Court: Mississippi Supreme Court
• Parties: ELIZA MOORE v. ROBERT MOORE ET AL

19 So. 953

74 Miss. 59

ELIZA MOORE v. ROBERT MOORE ET AL

Supreme Court of Mississippi

May 18, 1896

March 1896

FROM the chancery court of Claiborne county HON. CLAUDE PINTARD Chancellor.

The opinion states the case.

Decree reversed.

Brame &amp Alexander and J. McC. Martin, for the appellant.

Where one enters into an executory agreement for the purchase of land, and afterwards, before the title is conveyed to him uses the money of another to make payment, a trust results in favor of such other. Murry v. Sell, 23 W.Va., 475; Mosteller v. Mosteller, 40 Kan. 658; Brown v. Cave, 23 S. C., 251, 257; Gilchrist v. Brown, 165 Pa. 275; Rogers v. Murry, 3 Paige Ch., 389, 397.

It is not claimed by the appellant that a trust arises in favor of one who advances money, as a loan, to the party taking the title, or to pay off a lien or improve the property after he has acquired title. But it is insisted that one does arise where the money of another is paid for the land before the title becomes vested in the purchaser. The case of McCarroll v. Alexander, 48 Miss. 128, relied on by opposing counsel, is not in point, the money having been advanced in that case to take up an outstanding obligation after the legal title had been conveyed. The same may be said of Brooks v. Shelton, 54 Miss. 353, which simply recognizes the general principle that the money must have been paid "at the time of the purchase." While there is some uncertainty in the language of the decisions in the several states where the question has been passed upon, it may be said that, beginning with Botsford v. Burr, 2 Johns. Ch., 406, it has been very generally held that, in order to establish a resulting trust, the money must have been paid at or before the purchase was completed.

E. S. & J.. T. Drake, for the appellees.

A resulting trust does not arise unless the money of the third person was paid as his, and as a part of the original transaction; or, if paid subsequently to the purchase, the funds were applied under an agreement made at the time of the purchase. 10 Am. & Eng. Enc. L., 8; Brooks v. Shelton, 54 Miss. 353; McCarroll v. Alexander, 48 Ib., 128. See, also, Mahorner v. Harrison, 13 Smed. & M., 53; Bowman v. O'Reilly, 31 Miss. 261; Gee v. Gee, 32 Ib., 190; Gibson v. Foote, 40 Ib., 788; Hitt v. Applewhite (MS. Op.).

OPINION

WHITFIELD, J.

Appellant, who is the widow of Henderson Moore, exhibited this bill against the appellees, who are the children and grandchildren of Moore, seeking to establish a resulting trust in the tract of land described. The case made by the proof is this: Moore owned one tract of land, and his wife another. On February 11, 1882, he made an executory contract for the purchase of this land from Julius Weiss, paying him at that time $ 100, and executing his two notes, each for $ 107.50, payable, respectively, December 1, 1882, and December 1, 1883; the purchase price being $ 300, and the $ 15 excess in the two notes representing interest, and, at that date (February 11, 1882), received from Simon E. Marx (Julius Weiss' agent) a written paper acknowledging receipt of the $ 100 and the two notes aforesaid, and stating the terms of the executory contract of sale. Moore and his wife were negroes, living in Claiborne county, Miss. and Julius Weiss was a resident of New Orleans, La. After the payment of the $ 100, Moore was stricken with rheumatism and determined to forfeit the $ 100 and entirely abandon his contract of purchase. His wife, the appellant, was then, by agreement between them, substituted in his place as the purchaser of the land, and she was to pay the two notes, and a deed to the whole tract was to be made to her. Weiss was not informed of this change as to the purchaser. The wife did pay the two notes, but Weiss made the deed to Henderson, and mailed it to him, the deed being executed June 3, 1884. Moore, upon receipt of the deed, and afterwards, fully recognized the wife's right to the land, and declared that his wife had paid for the land, that he had intended to have the deed made to her, but by mistake it had been made to him, and that he was going to have it "fixed next week, " and (on his deathbed) that he wanted it "changed to her." He died before he could have the deed made to his wife.

It will be observed that the rights of third parties are not here involved. The paper of February 11, 1882, was not a deed. It was a mere receipt and executory contract for the sale of the land. Weiss himself says that it was a receipt for cash and two notes for purchase of the land, but no deed was to be made till the notes were paid. It must be noted that it was intended by both Henderson and his wife that the deed should be made to her to the whole of the land, and its not being so made was not due to any secret violation of fiduciary duty by Henderson--not due, in any sense, to fraud. Had it been, there would have been a case of constructive, not resulting, trust. 2 Pom. Eq. Jur., sec. 1031, note 3; Beach, Mod. Eq. Jur., § 215. It was due wholly to mistake, the parties living in different states.

The very able counsel for appellees insist that the payments by the wife were made after the purchase, and hence that no resulting trust arose, and quote 10 Am. & Eng. Enc. L., as follows: "In order to establish a resulting trust, it is necessary that the party paying the purchase money should have actually paid it, as his own, as a part of the original transaction." Counsel overlooked the last part of the sentence quoted, "at or before the time of the conveyance." The question is, what is meant, when it is sometimes loosely said that the consideration must be paid at or before the time of the purchase, by the phrase "the time of the purchase?"

We think the authorities clearly show that, in the case of an executory contract of purchase, where part is paid, and there are deferred installments of consideration to be met, that "the time of purchase" means, within the rule we are discussing, the time of the execution of the conveyance passing the legal title. Mr. Beach thus lays down the rule (1 Beach, Mod. Eq. Jur., § 223): "A resulting trust must arise at the time of the execution of the conveyance. A subsequent payment will not, by relation, attach a trust to the original purchase. The trust, to exist, must be coeval with the deeds; and after one person has made a purchase with his own money or credit, no subsequent transaction, whether of payment or reimbursement, can produce such a trust in his favor. It is frequently said that, in order to create a resulting trust, a payment of the purchase money must be made at the time of the purchase; but by this it is only meant that the trust must arise from the original transaction, and at the time it takes place, and at no other time, and that it cannot be mingled or confounded with any subsequent dealings; that it is impossible to raise a resulting trust so as to divest the legal estate of the grantee or his heirs by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money." Citing, in note 5, Milner v. Freeman , 40 Ark. 62.

The same doctrine precisely is laid down by Pomeroy. 2 Pom. Eq Jur., sec. 1037; Mosteller v. Mosteller , 40 Kan. 658, 20 P. 464; Murry v. Sell , 23 W.Va. 475 (where the court say that while "a resulting trust cannot be raised by matter ex post facto , " nevertheless, "until the purchase money is paid, and the conveyance executed, the contract is mere y executory, and the vendor, in law, is still the owner of the lands, " and this was a case where A first made an executory contract for the purchase of land, and, afterwards, before the purchase money was paid or the conveyance was executed, he agreed with B that, if he would enter into the purchase, and pay half, he should have half the land, and B complied, and the title was taken in A's name); Gilchrist v. Brown , 165 Pa. 275, 30 A. 839; Rogers v. Murray , 3 Paige's Ch. 397 (where the court say: "After the legal title has once passed to the grantee by the deed, it is impossible to raise a resulting trust so as to divest the legal estate, by the subsequent application of the funds...