Mountford v. Mountford

• Decision Date: 07 December 1942
• Docket Number: 53.
• Citation: 29 A.2d 258,181 Md. 212
• Parties: MOUNTFORD v. MOUNTFORD.
• Court: Maryland Court of Appeals

29 A.2d 258

181 Md. 212

MOUNTFORD v. MOUNTFORD.

No. 53.

Court of Appeals of Maryland

December 7, 1942

Appeal from Circuit Court, Montgomery County; Stedman Prescott Judge.

Suit by Nathaniel Mountford against Donna M. Mountford to establish a trust of certain property held by the defendant. From a decree dismissing the bill of complaint, the complainant appeals.

Affirmed.

Eldridge Hood Young, of Baltimore, for appellant.

Joseph T. Sherier, of Washington, D. C. (Robert Peter, of Rockville and J. Allan Sherier, of Washington, D. C., on the brief), for appellee.

Before SLOAN, JOHNSON, DELAPLAINE, COLLINS, MARBURY and GRASON, JJ.

COLLINS Judge.

The appellant, Nathaniel Mountford, filed a bill of complaint in the Circuit Court for Montgomery County against his wife, Donna M. Mountford, appellee. He prayed that the very expensive and luxurious home of the parties, located on Connecticut Avenue in Chevy Chase, Maryland; the real estate, known as the Rittenhouse Street property, located in the City of Washington; all of which he had had titled in the name of his wife; and securities, notes, mortgages, stocks, bonds and other personal property and cash, of the value of $60,000, which he had acquired and put in the possession of his wife and which he claimed the wife was wasting and dissipating; and the very expensive furniture in the home at Chevy Chase; all be decreed to be the joint property of the appellant and the appellee during life, and upon the death of either, to pass to the survivor. He alleged that all these properties, except the furniture, were put in her name and possession 'with the distinct understanding and agreement that, while the legal title or possession of the said property was in her alone, it was understood between them that both of the parties hereto were the owners thereof, as well as any increase or yield therefrom, and that the same would be held by the defendant for herself and your Orator for their declining years and to belong to the survivor of them', that the aforesaid properties and securities were to be held by the appellee in trust for the appellant and the appellee. He also prayed for discovery, for an injunction, for a receiver and for general relief. Upon the dismissal of his bill of complaint by decree, after answer filed by his wife denying the material allegations of the bill and after the taking of testimony, he appeals to this Court.

At the time the bill in the instant case was filed, there was a divorce suit pending, filed by the wife against her husband, and in that case the wife, appellee here, prior to the decree in the instant case, obtained a divorce from the appellant here on the grounds of adultery, which was affirmed by this Court, April Term, 1941, 179 Md. 697, 19 A.2d 178.

In the bill of complaint there is no allegation that the delivery to the wife at the inception of the transaction was induced by fraud or that the delivery at the inception of the transaction was induced by the wife by reason of the confidential relationship between the parties nor is there in the testimony, evidence to sustain such an allegation, and therefore no constructive trust is established. McIntyre v. Smith, 154 Md. 660, 141 A. 405; McInnes v. McInnes, 163 Md. 303, 163 A. 85; Leupold v. Leupold, 156 Md. 516, 144 A. 647; Lipp v. Lipp, 158 Md. 207, 148 A. 531.

The question therefore before us is whether the testimony in this case establishes a valid resulting trust in favor of the wife and husband, including the properties in dispute.

The appellant shows that the parties were married in New Jersey in 1898 and removed to Washington, D. C., the following year, where he obtained a position as a window dresser. After working for five or six years, he saved money and purchased a small millinery business for $500. He continued his employment as a window dresser, and his wife conducted the millinery business with his help. He later resigned his position and devoted all his attention to the millinery business with his wife. Numerous other millinery stores were bought by the parties, the leases being in his name, and they were very successful in their business. The profits from the businesses were made by them jointly and were used to purchase the properties now in dispute. They lived and worked happily together until the year 1935, when it was necessary for the wife to have a serious operation. After she returned from the hospital, the doctor advised that she not return to the store. At that time the husband apparently became infatuated with one of the women employees in the store which resulted in the divorce. Trouble began between the parties to this suit soon after she returned from the hospital in 1935.

The daughter of the parties, Mrs. Donna M. Powell, a resident of the State of North Carolina, testified that it was distinctly understood between her father and mother that the properties were both of theirs to use and that they would go to whoever lived the longest, to use jointly as long as they both lived. This, however, was a general conclusion on her part. She could not recite the general wording of such an agreement. Her husband, Douglas A. Powell, testified that, while he couldn't say there was any definite understanding about it, the properties were put in trust, although they were in her name, and that they were to use them jointly. He could not, however, fix the time, place, terms, or general wording of such an agreement. 'When the plaintiff relies upon mere parol evidence to establish the trust, the 'court should view with the greatest caution such evidence impeaching, as it does, solemn instruments, the evidence of title to land * * *.' While general reputation as to the ownership of the property in dispute, under the facts and circumstances of the case, might be admissible as reflecting upon the question of laches, it cannot be received to prove title to the land, or to establish the trust asserted by the bill.' Dixon v. Dixon, 123 Md. 44, 58, 59, 90 A. 846, 851, Ann.Cas.1915D 616. The evidence used for the purpose of displacing the title of the holder, unless founded on her own admissions or declarations of trust, must be contemporaneous with the purchase. Subsequent acts or declarations of the purchaser, although most unequivocal and conclusive, cannot be admitted for the purpose. Mutual Insurance Company v. Deale, 18 Md. 26, 79 Am.Dec. 673; Johnson v. Johnson, 96 Md. 144, 148, 53 A. 792; Porter v. Porter, 168 Md. 287, 177 A. 460. It is not what the husband, alone, intended. The intention must be mutual and the agreement must be that of both parties.

The appellant's testimony was, in effect, that the Hesketh Street lot, the first bought by them, was obtained 'in her name with the distinct understanding that both of us would live and carry out our agreement all our days, and when either one died, it would make no difference, it would go to the other.' He said that he never gave this house and lot to her. He said: 'I told her I would have it put in her name for both of us as long as we lived and whoever survived would take it over.' This lot was later sold and the money reinvested. In reference to the Connecticut Avenue property, he testified that he had the same agreement in reference to that place as about the first one and that he told her that 'this house was going to be put in your name and I am going right along and put it right in your name just as all the time--just as I did all the time.' He spoke to a Mr. Stunts, a bank official, about putting the property in his wife's name. He testified further: 'I told Mrs. Mountford that Mr. Stunts advised me that it was all right that way, but that we would never know what happened the way we have it now if anything happened to you.' He further testified in reference to the Connecticut Avenue property: 'I told her I had put it in her name just the same as we had done with other property. We agreed and said, 'It makes no difference which one of us it was. What is yours is mine anyhow.'' 'It was built for both of us.' He further claimed that he did not give her the property. In reference to the furniture, he said, 'In fact, both of us always agreed what was one's was the other's.' 'Everything had to go to the other.' He said he never gave the furniture to his wife. He testified that: 'I always had a great belief in heredity and all my people died very young. Mrs. Mountford was very well at the time. I never had any insurance and no protection. The first thing I did was to get that lot in her name with the distinct understanding that both would live and carry out our agreement all our days and when either one died, it made no difference, it would go to the other.' He said the savings accounts were opened in the name of the appellee to keep them separate from the commercial account belonging to both of the parties and used by both of them. In reference to the securities, the possession of which he turned over to his wife, according to the allegations of the bill, he testified: 'I did not carry any large insurance. So when we started purchasing real estate notes, I didn't buy any insurance because I could buy these notes and make 6 per cent, and both of us would enjoy the interest off these notes as long as we lived, in case either one would die, the notes were in blank and the first thing to do would be to go to the bank and endorse them. If anything happened, it would save the cost of court litigation.' He testified that Mrs. Mountford agreed to this and the notes were put in a safe deposit box, rented in the names of Donna May or Nathaniel Mountford. In reference to the property acquired by foreclosure of a mortgage in his wife's name, he said he told the attorney to foreclose the mortgage and put the property in Mrs. Mountford's...