Pittock v. Pittock
| Citation | 98 P. 719,15 Idaho 426 |
| Parties | T. RALPH PITTOCK, Respondent, v. STELLA PITTOCK, Appellant |
| Decision Date | 23 November 1908 |
| Court | Idaho Supreme Court |
EJECTMENT-ALLEGATIONS OF COMPLAINT-ALLEGATIONS OF ANSWER AND CROSS-COMPLAINT-FINDINGS-RESULTING TRUST-STATUTE OF FRAUDS-SUFFICIENCY OF EVIDENCE.
1. Where all of the findings of fact in regard to the issues made by the cross-complaint alleging a resulting trust are that the court finds "that there is no competent evidence to sustain the facts as stated in the allegation" (giving its number as it appears in the cross-complaint and following that with the allegation), it is not a sufficient finding of fact.
2. A resulting trust may be established by parol evidence.
3. A resulting trust arises by operation of law in favor of a person who advances the purchase money for land, though the title be taken in the name of another; or in favor of a person for whom it is advanced by way of a loan, the title being taken in the name of the lender; and such trust may be established by parol evidence.
4. Such a trust, being one which results by implication or construction of law, does not fall within the provisions of the statute of frauds, and may be established by parol evidence.
5. Held, that on a retrial of this case, all evidence offered by the appellant tending to show a resulting trust should be admitted.
(Syllabus by the court.)
APPEAL from the District Court of Nez Perce County. Hon. Edgar C Steele, Judge.
Action in ejectment with cross-action to declare a resulting trust. Judgment for plaintiff. Reversed.
Reversed and remanded and a new trial ordered. Costs of this appeal awarded to the appellant.
Geo. W Tannahill, for Appellant.
"A resulting trust, being one which results by implication or construction of law, does not fall within the provisions of the statute of frauds, and may be established by parol evidence."
Chas. L. McDonald, and D. E. Hodge, for Respondent.
"A constructive trust arises only in cases of misappropriation of the property of the cestui que trust." (Pomeroy's Eq. Jur., sec. 1044 et seq.; 20 Cyc. 234, and cases there cited; Largey v. Leggat, 30 Mont. 148, 75 P. 950.)
"A resulting trust is raised only where there is fraud in the acquisition of title, or where the money of one is used to pay for real property, the title to which is taken in the name of another at the time said title is taken, and neither a promise to pay nor any after payment will give rise to such a trust." (Motherwell v. Taylor, 2 Idaho 254, 10 P. 304; Lewis v. Lewis, 3 Idaho 645, 33 P. 38.)
"Evidence to establish a resulting trust must be clear and convincing, and when the testimony is in doubt, or the evidence conflicting, the legal title must prevail." (De Roboam v. Schmidtlin (Or.), 92 P. 1082; Pomeroy's Eq. Jur., sec. 1040; Rice v. Rigley, 7 Idaho 115, 61 P. 290.)
The complaint in this action contains the usual allegations in an action in ejectment. It alleges that plaintiff is seised in fee, the owner of, and entitled to the possession of that certain land or lot described in the complaint, it being a lot or lots situated in the city of Lewiston, with a dwelling-house and other improvements thereon. It is alleged that while the plaintiff was so seised of said premises, the defendant without right or title entered into the possession of said premises and ousted and ejected the plaintiff therefrom, and now unlawfully withholds the possession thereof from the plaintiff, to his damage in the sum of $ 100; that the values of the rents, issues and profits of said premises from November 1, 1907, and while the plaintiff was excluded therefrom, was the sum of $ 25, and prays judgment for the recovery of the possession, $ 100 damages, and for the sum of $ 25 as the value of the rents, issues and profits.
The defendant by her answer denies each of the material allegations of the complaint, and sets up three separate defenses, which defenses were treated as a cross-complaint on the trial, and treated as denied by the plaintiff. She avers that John W. Pittock and she were, during the times mentioned in the complaint and up to January 19, 1908, husband and wife, said John W. Pittock having died on that day; that prior to April 16, 1907, she, with her said husband, entered into an agreement with O. A. Kjos and his wife for the purchase of the premises described in the complaint, for the agreed price of $ 3,000, and that a portion of the purchase price was paid by her said husband to the said Kjos, the exact amount of which was unknown to the defendant; that said deal was not closed or carried out until April 15, 1907, for the reason that said Kjos and wife could not give possession of said premises until that time; that it was agreed by and between the plaintiff, T. Ralph Pittock, and the said John W. Pittock and the defendant, that said property was purchased for the use and benefit of the defendant, and would be conveyed to her as soon as the purchase was completed and conveyance made; that prior to April 15, 1907, the said John W. Pittock departed from the state of Idaho and went to the state of California, and was not present to execute the mortgage necessary to the acquisition of said land, and that he executed a certain power of attorney in favor of Louise Lillie for the purpose of executing a mortgage to secure a portion of the purchase price of said premises, said mortgage to be executed in the name of John W. Pittock by the said Louise Lillie as his attorney in fact; that under and by virtue of the understanding and agreement between the defendant herein and her said husband and T. Ralph Pittock, the plaintiff herein, the said property was to be and remain the separate property of said defendant, and the said T. Ralph Pittock well knew of this agreement and acquiesced and consented thereto; that on account of said agreement, and for the reason that the parties who were making the loan to the said John W. Pittock and this defendant of $ 1,500, a part of the purchase price for said premises, the said mortgage could not be executed by said Louise Lillie as attorney in fact for John W. Pittock, and it was arranged and understood and agreed by and between John W. Pittock and the plaintiff, T. Ralph Pittock, that the said deed from O. A. Kjos was to be made to T. Ralph Pittock in trust for this defendant, and that the said T. Ralph Pittock was to execute said mortgage and subsequently thereto convey the said property, and each and every part thereof, to this defendant; that pursuant to said understanding and agreement, the said Kjos and wife executed a deed for said premises to the said T. Ralph Pittock, and that said Pittock in turn executed a mortgage covering said property for the sum of $ 1,500; that the balance of the purchase price was paid and as defendant is informed and believes, a small portion thereof was paid by T. Ralph Pittock which was to be returned to the said T. Ralph Pittock by John W. Pittock, and said T. Ralph Pittock was to reconvey the said property to the defendant herein, which property was to be and remain her separate property; that John W. Pittock has fully paid T. Ralph Pittock all the money advanced by him as the purchase price or part of the purchase price of said land, and that said T. Ralph Pittock now fails and refuses to reconvey the property or any part thereof to the defendant; that T. Ralph Pittock has collected as rent for said property $ 125, for which sum he should account to this defendant.
For a third defense, it is alleged that there is another action pending in the above-entitled court, involving the same controversy. After setting up in detail the issues involved in the other action, she prays, among other things, that she be decreed to be the owner of said premises and that the title thereto be quieted in her, and for such other and further relief as would be just and equitable.
The cause was tried by the court without a jury upon the complaint and answer. That part of the answer called "separate defenses" was treated as a cross-complaint by the trial court, and was not answered by the plaintiff, but was evidently treated on the trial as having been denied. Finding of facts and judgment were entered for plaintiff. Thereafter a motion for a new trial was denied, and this appeal is from the judgment and order denying a new trial.
Numerous errors are assigned, some of which go to the admission and rejection of evidence and the sufficiency of evidence to support the findings of fact and conclusions of law.
It will be observed from the allegations of the complaint that it is simply an action in ejectment, alleging title, right to possession, ouster by the defendant, and for damages and rental. The answer denies...
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