Norris v. Norris

• Decision Date: 15 December 1943
• Parties: NORRIS v. NORRIS et al.
• Court: Ohio Court of Appeals

57 N.E.2d 254

NORRIS
v.
NORRIS et al.

Court of Appeals of Ohio, Second District, Montgomery County.

June 29, 1943.
Supplemental Opinion Dec. 15, 1943.

Suit by Helene V. Norris against J. Frank Norris and another for a declaration of trust, for an inspection of the records of the named defendant, for an accounting and for a setting aside of certain transfers of realty made by the named defendant. From a judgment for the plaintiff, the defendants appeal on questions of law and fact. The Court of Appeals on its own motion named a Master Commissioner who thereafter filed his report. On defendants' motion to disaffirm report of the Master Commissioner, and upon plaintiff's motion to confirm the report.-[Editorial Statement.]

Report modified, and as so modified, confirmed.

Appeal dismissed in 142 Ohio St. 634, 53 N.E.2d 647.

[57 N.E.2d 255]

George R. Murray, of Dayton, for plaintiff-appellee.

Swaney & Creager, of Dayton, and Harry W. Vanneman, of Columbus, for defendants-appellants.

HORNBECK, Judge.

This matter comes on upon motion of defendants-appellants to disaffirm the report of Clarence J. Stoecklein, Master Commissioner, filed in this Court November 17, 1942, and upon motion of the plaintiff-appellee to confirm said report and the separate findings of fact and law therein on all points of fact and law excepting the amount found due the plaintiff-appellee, which should be $9,641.92 with interest at 6% per annum on December 24, 1937, * * *.

This cause was tried as a chancery case in the Common Pleas Court and there referred to Mr. I. L. Jacobson, as Referee, who made report favorable to the plaintiff and recommended a judgment in her behalf in the sum of $8300, with interest from the date of the filing of the petition.

[57 N.E.2d 256]

The trial judge approved and confirmed the report and entered judgment accordingly. From this judgment defendants noted an appeal to this Court on questions of law and fact. This Court on its own motion named a Master Commissioner who has filed his report, which is detailed and comprehensive and reflects careful and capable effort.

The plaintiff, in her petition, after setting up the facts as she claims them to exits, prays for a declaration of trust, for an inspection of the records of her former husband, defendant, J. Frank Norris, for an accounting, and for the setting aside of certain transfers of real estate made by said defendant to his mother, Naomi C. Norris, defendant, then living. There is no prayer for a money judgment. The defendants, jointly answering, admit that plaintiff had turned over to defendant, J. Frank Norris, certain moneys but plead that they have been repaid to the plaintiff, with interest. Plaintiff replied denying that the moneys had been repaid to her.

The Master Commissioner found, first, that the plaintiff from 1920 to 1931 inclusive, advanced to the defendant, J. Frank Norris, the sum of $8,101.92 of which sum said defendant repaid the plaintiff $200 in 1937, leaving the sum of $7,901.92 which the Commissioner finds the defendant has failed to repay to the plaintiff. He then considers whether or not the relationship between the parties, and when we refer generally to parties, we mean the plaintiff and defendant, J. Frank Norris, was that of trustee and cestui que trust or that of debtor and creditor, and finds that ‘plaintiff's fundamental contentions are fully corroborated by the admissions of the defendant, J. Frank Norris, himself and that an informal express trust has been established.’ The word ‘informal,’ no doubt, was employed as meaning oral. The Commissioner continuing says:

‘If for any reason it might be considered that the above established facts are too informal to constitute an express trust, the following facts are clear:

‘1. That the plaintiff did entrust her money to the defendant, J. Frank Norris, and he was to keep a book record thereof.

‘2. That the relationship between the parties was a confidential one (husband and wife).

‘3. That the defendant was to invest said money for plaintiff's benefit.

‘4. That it was to be returned to her upon demand.

‘5. That plaintiff had faith and confidence in the defendant that he would do nothing to impair her interests.

‘6. He did impair her interests when he divested himself of all his property-or, at least, attempted to do so.’

The Master Commissioner makes no definite finding upon the six factual determinations heretofore set forth, but it is obvious that he concluded that, if for any reason the court did not adopt his opinion that an express trust has been proven, there is the basis for a decree that a constructive trust arose upon the established facts.

At the time the suit was instituted and at the time of the trial in the Common Pleas Court, many transactions were carred into the record which established to a point of certainty that the defendant, J. Frank Norris, although at time of trial claiming to be insolvent, had made numerous withdrawals of his accounts from U. S. Postal Savings accounts and from Building and Loan accounts, had transferred his interest in accounts aggregating thousands of dollars to his mother, and that he had deeded real estate of the value of $29,200 to his mother, all without the knowledge of the plaintiff and with a purpose to conceal the transactions from her; that no consideration moved from his mother to said defendant, J. Frank Norris, for said transfers. In fact, the conduct of the defendant, as projected from the record and the exhibits, bears all the indicia of evasion, double dealing and purpose to perpetuate a fraud on plaintiff.

After the cause had been adjudicated in the Common Pleas Court, Naomi C. Norris, mother of J. Frank Norris, died, leaving him as her sole survivor and heir-at-law and thus, as the Commissioner points out in his report, some of the questions as to the form of relief to be granted to the plaintiff were removed. The Commissioner makes the following conclusions of law:

‘That the plaintiff should recover from the defendant the sum of $7,901.92 with interest at 6% per annum from December 24, 1937, being the date defendant repudiated his trust * * *.

‘That a deed from J. Frank Norris to Naomi C. Norris of certain described lots in the city of Dayton, Ohio, was conditionally

[57 N.E.2d 257]

delivered only to Naomi C. Norris and that the acquisition of title by her was defeated by her death and that said title is in J. Frank Norris.

‘That, had Naomi C. Norris continued to live the plaintiff would have been entitled to have a constructive trust impressed upon the real estate in her hands, but that such relief is now unnecessary in view of her death because the plaintiff now has ample security for restitution of her trust funds out of the real estate owned by him and finds that an equitable lien should be declared in favor of the plaintiff in the sum found due her, together with interest and costs of this procedure.’

In this Court all rights of the appellants are merged in the appellant, J. Frank Norris, to whom we hereinafter refer as the appellant, the defendant, or the husband.

Many and voluminous briefs have been filed. We do not propose to add to the literature of this case extended discussions of all of the manifold propositions advanced against and for the respective claims of the parties upon their motions, but we will, insofar as possible, consider some of the principal legal questions advanced under the headings set out in appellant's briefs.

Form of Action.

It is urged by the appellant that the action is for money only; that, early in the proceedings in the Common Pleas Court, the defendants insisted upon their right to...