Nussbacher v. Manderfeld

• Decision Date: 18 November 1947
• Docket Number: 2365
• Citation: 64 Wyo. 55,186 P.2d 548
• Parties: PETER NUSSBACHER, Plaintiff and Respondent, v. THEODORE P. MANDERFELD AND MARY MANDERFELD, Defendants and Appellants
• Court: Wyoming Supreme Court

186 P.2d 548

64 Wyo. 55

PETER NUSSBACHER, Plaintiff and Respondent, v. THEODORE P. MANDERFELD AND MARY MANDERFELD, Defendants and Appellants

No. 2365

Supreme Court of Wyoming

November 18, 1947

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Action by Peter Nussbacher against Theodore P. Manderfeld and Mary Manderfeld for decree declaring joint tenancy to have terminated and that the property included therein be vested in Peter Nussbacher, surviving joint tenant, where in defendants cross-petitioned for reformation of deeds. From an adverse judgment, defendants appeal.

Judgment affirmed.

Affirmed.

For the defendants and appellants the cause was submitted on the brief of Jack Wolfe of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

It has been a well settled rule in equity since early times that a court of equity will deem a cotenancy to be a tenancy in common rather than joint tenancy if in the grant or limitation of the estate there appear any words or circumstances which show an intention that the interests granted be severed, or that there be no survivorship. Ann Cas. 1917B. pg. 60.

A purchase by two or more jointly, each contributing equally prima facie creates even in equity a joint tenancy, and, in the absence of anything to show an intent to sever, it will be construed to create such an estate. Harris v. Fergusson, 16 Sim. 308, 60 Eng. Rep. (Reprint) 892.

A purchase by partners paid for in partnership funds, creates a joint tenancy. Wray v. Wray (1905) 2 Ch. 349, 74 L. J. Ch. 687, 93 L. T. N. S. 304, 54 W. R. 136.

If there is anything in the transaction to show an intention to sever the interest, equity will construe the purchase as creating a tenancy in common. Harrison v. Barton, 1 Johns. & H. 287, 7 Jur. N. S. 19, 1 L. J. Ch. 213, 9 W. R. 177.

In the application of the rules relating to the creation of an estate by entirety, it is immaterial whether the entire consideration is furnished by one spouse or part by the husband and part by the wife, and at any rate at law a conveyance to husband and wife will be held to create an estate by entirety even though all or part of the consideration is furnished by the wife; but in equity, an application of the wife or her heirs, as distinguished from the husband and his heirs, it has been held not to create a tenancy by entirety. Footnote 44 Mo. Moss v. Ardrey, 169 S.W. 6, 260 Mo. 595, 30 C. J. p. 563, note 25.

Husband cannot retain by survivorship entire estate taken in names of spouses for which wife alone paid purchase price, since wife alone was entitled to conveyance. Carter v. Oxendine, 137 S.E. 424, 193 N.C. 478. 41 C. J. S. 452-453.

To create an estate in joint tenancy it is not necessary to use the exact words of the Act "not tenancy in common, but in joint tenancy", nor to use the words "joint tenancy". Any words will create a joint tenancy which show: (1) That the testator (or grantor) understood the nature of and distinction between a tenancy in common and a joint tenancy; and (2) that he clearly intended to create a joint tenancy, or to create a survivorship right as an incident to a granted cotenancy. Slater v. Gruger, 165 Ill. 329, 46 N.E. 235; Mustain v. Gardner, 203 Ill. 284, 67 N.E. 779; Cover v. James, 217 Ill. 309, 75 N.E. 490.

Joint tenancies are created by contract, and if not so created, they do not exist. They are not favored, and, if not expressly created by contract, the law presumes the tenancy is in common, and that upon the death of one of the holders of the title his or her interest descends to his or her heirs. But this is not true of joint tenancies. In order to create a joint tenancy, the purpose must be clearly expressed, otherwise the tenancy will be held to be in common. It is a clear matter of contract, and the intention of the parties must govern. Ann. Cas. 1917B, 91.

A resulting trust is a trust arising by implication or construction of law, and presumed to exist from the supposed intention of the parties and the nature of the transaction. Such trusts are also called presumptive trusts, and are frequently defined in terms of or in connection with the character of the transaction out of which they most frequenty arise, namely, where one person pays the consideration for a purchase and the title is taken in the name of another, although they may result from other kinds of transactions. 39 Cyc. 26; Cook v. Elmore, 27 Wyo. 163, 169-170.

Where the husband purchases land and pays for it with the separate money of this wife in part without her written assent authorizing him so to do, and in part with his own money, and takes the legal title jointly to himself and wife, a court of equity will protect the wife in the enjoyment of her interest in the property, and declare a trust in her favor. Donovan v. Griffith, 20 L. R. A. (N. S.) 830-831; Shaw v. Bernal, 124 P. 1012.

It is established by the great weight of authority that, where the purchase price is furnished by the wife and title to the property taken in the name of the husband, a resulting trust is presumed in favor of the wife. Rhodes, et al. v. Peerey, et al., 19 P.2d 418.

The general rule is that where property is conveyed to a husband in consideration of money or assets furnished by or belonging to his wife, there is no presumption of an advancement, or gift to the husband, and a resulting trust arises. 65 C. J. 410.

For the plaintiff and respondent the cause was submitted on the brief of R. E. McNally of Sheridan, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

The doctrine of a resulting trust should not thwart the announced intention of the parties. This was a very normal and usual transaction between husband and wife.

There is a total lack of evidence in this case as to how much money either Mr. or Mrs. Nussbacher invested in their joint venture. In the absence of evidence the court is unable to make findings and to render an adjudication.

RINER, Chief Justice. BLUME, J., and KIMBALL, J., concur.

OPINION

RINER, Chief Justice.

This is a proceeding by direct appeal to review a judgment of the district court of Sheridan County brought by Theodore P. Manderfeld and Mary Manderfeld, his wife, as appellants, they being the defendants in the trial court. The plaintiff, now the respondent, Peter Nussbacher, instituted the action to obtain a decree pursuant to the provisions of Chapter 127 Laws of Wyoming 1945 (W. C. S. 1945, Section 6-2715) declaring that the joint tenancy established by the instruments hereinafter mentioned had terminated and the estate and the property included therein was vested in Peter Nussbacher, the surviving joint tenant.

The material facts to be considered may be summarized as follows: During the month November 1927 Peter Nussbacher, the above named plaintiff married Margaret Schorkops whose first husband lived in Colorado, owned a farm there and their marriage had terminated by his death. The marriage of Peter and Margaret continued until on or about April 12, 1946 when she died. Shortly after their marriage Margaret, being in poor health, went to California where she stayed for some 13 years with occasional visits to Wyoming until 1940. Meanwhile Peter remained in this state, looked after their farm property in the vicinity of Sheridan, Wyoming and deposited the proceeds which arose from the farming operations in a joint bank account upon which both Peter and his wife were privileged to draw checks. It appears that nearly $ 3000 of the money in the bank owned jointly by both Peter and Margaret was spent for doctor bills for her. Peter also put $ 1000 of his own money and she put in the same amount in the building of a house that was erected on the premises which were ultimately sold prior to the purchase of the premises here involved.

After the year 1940 Margaret returned to Wyoming and lived with Peter upon their farm property until her death as above stated. Margaret appeared to be the one who had considerable money and with it prior to November 16, 1945 she purchased in the neighborhood of 2000 acres of land. Some of this land thus purchased was obtained at a comparatively small price per acre but the increase of real estate values enabled the couple to realize some considerable profit when the land was finally sold as hereinafter detailed. It is apparent that much the larger amount of funds for these land purchases was supplied by Margaret but some funds and some property were also furnished by Peter. The business affairs of these two married folks, as frequently is the case, were so intermingled it is not clear from the record exactly how much each contributed to these land and property accumulations.

As already stated, Margaret's health was not good and in order to be closer to the City of Sheridan where hospital facilities were available, the Nussbachers sold their land holdings obtained as above recited and on or about November 16, 1945 purchased certain real estate situated in Sheridan County, Wyoming for a stated consideration of $ 23,300, $ 7,300 being the amount paid for the property conveyed in one deed and $ 16,000 being the recited purchase price set forth in the other. Both instruments were dated November 16, 1945. These two conveyances by which the Nussbachers acquired title to these lands each transferred the ownership of the described properties therein to the grantees, Peter and Margaret Nussbacher, as "husband and wife as joint tenants with the right of survivorship and not as tenants in common". The instruments were thereafter duly recorded in the Office of the County Clerk and Ex-Officio Register of Deeds of Sheridan County and the purchasers took possession of the premises and continued to occupy them as their home until Margaret's death occurred.

On April 5, 1946,...