Reese v. Murnan

• Decision Date: 13 December 1892
• Citation: 5 Wash. 373,31 P. 1027
• Parties: REESE v. MURNAN ET AL.
• Court: Washington Supreme Court

31 P. 1027

5 Wash. 373

REESE v. MURNAN ET AL.

Supreme Court of Washington

December 13, 1892

Appeal from superior court, Cowlitz county; N.H. BLOOMFIELD, Judge.

Action by Frank Reese against Margaret Murnan, Mary Murnan, Julia Murnan, John Murnan, and Edward Murnan, heirs at law of Thomas Murnan, otherwise known as Thomas Moran, deceased, and Eben Smith, administrator of the estate of Thomas Murnan otherwise known as Thomas Moran, deceased, to establish a resulting trust in plaintiff's favor in certain land of which said decedent died seised. Plaintiff obtained judgment. Defendants appeal. Modified.

Robinson & Rowell, Smith & Littell, Jas. A. May, Preston, Carr & Preston, and Imus Bros. for appellants.

Judson Applegate, A. R. Titlow, and Parker &amp Williamson, for respondent.

STILES J.

The main question in this case is, what kind of evidence shall be held sufficient to charge the estate of a deceased person with a resulting trust in real property? Thomas Murnan died seised of certain lands in Cowlitz county, comprising a large part of the "original town site of Kalama;" and Reese, the respondent, has asserted, to the satisfaction of the learned superior court, that he was entitled to half of it, because he furnished half of the purchase price of the land, under an agreement with Murnan that the title should be the property of both. Murnan took the title in his own name, however, and Reese did not, during the former's lifetime, secure any formal recognition of his alleged interest. To prove his case, the respondent resorted to five different species of testimony, viz. testimony tending to show (1) the previous intimate business and social relations of the parties; (2) an understanding, several months before the purchase, that they would buy together; (3) that Murnan, on the day before he paid the purchase money and received the deed, obtained from Reese more than money enough to pay half the price, and used this money in paying for the land, (4) oral statements and acts of Murnan amounting to admissions by him of Reese's interest; (5) letters of Murnan to Reese claimed to contain admissions.

"When one makes an oral contract with another that the latter shall buy land on joint account, and he, in violation of the contract, takes a deed to himself, no trust results in favor of the former, as to one half of the land, unless it is shown that he furnished the money for the one half; in other words, that it was bought with his money." Bailey v. Hemenway, 147 Mass. 326, 17 N.E. 645. At the time of the purchase, the circumstances between them must have been such that Murnan's act in taking title to himself, and refusing to Reese a participation in it, would have been a fraud on the latter. Pom. Eq. Jur. § 1056. If Murnan was in debt to Reese, and promised to pay him by securing to him a conveyance of half of this tract of land, his violation of his promise would not avoid the statute of frauds. Fickett v. Durham, 109 Mass. 423.

The third class of testimony concerns the first point of strife in the case. The consideration for the land was $1,000, and the two deeds were sent to Kalama, by the grantor, by express, C. O. D. Murnan being dead, Reese does not testify; but the express agent makes it clearly appear that Reese's money, $700, was paid to Murnan to make up the $1,000 necessary to pay for the deeds. This fact in no wise depends upon any admission or declaration of Murnan, and obviates one of the appellants' strongest protests in the case. But the fact that Reese's money went into the land would not alone be sufficient. Appellants say that Reese was merely loaning Murnan $700, and the presumption certainly is with them,-that the transaction was only a loan. Moreover, they are sustained by a peculiar, indirect admission made by Reese himself, viz. his presentation to the administrator of Murnan of a verified claim for $700, alleged to have been loaned to deceased February 10, 1890, the day before the deeds were delivered. Therefore, other facts were necessary to overcome the presumption, and the apparent admission; for it must be established that it was respondent's money that paid for one half of the land, not that Murnan paid his own money, borrowed from respondent. Bish. Eq. § 81.

The testimony included in the fourth class, above mentioned, is too voluminous and contradictory for an abstract, even and we shall only allude to it briefly. At the time of the purchase, and for some time before, Murnan and Reese lived at Kalama. Both had been railroad employes, and were partners in a certain fish business, and owned other real estate together, and were real-estate agents. There was some testimony showing that they had had under consideration the project of buying this land, as a speculation, in the summer of 1889; and it appears probable that a contract was at that time obtained for the purchase of the land, running to Murnan as the obligee therein. Very soon after the taking of this contract, Murnan commenced to make contracts with third parties for the sale of various lots, and, in conversations with the parties with whom he was bargaining for lots, he frequently stated that Reese was equally interested with him in the land; and the impression in the community seems to have been that they had actually bought the property together. The deeds were received February 11, 1890, and recorded the next day. Both parties remained in Kalama until the latter part of March, when Murnan removed to Seattle, where he remained until his death, September 15, 1890. About July 1st of the same year, Reese became seriously ill, and was confined to his bed, at Castle Rock, until November 1st, after Murnan's death. The efforts of both men seem to have been engaged, both before and after the receipt of the deeds, in selling lots and creating a "boom" in the town. They were the owners of another tract of land, known as the "Union Pacific Addition," and their efforts were given indiscriminately to the sale of lots of both kinds; but early in March Reese sold out the Union Pacific addition to Murnan, and gave him a deed for his interest. A number of witnesses testify to the actions of Murnan and Reese, and to conversations had with the former to the effect above stated. One person testified that she was in a room in a hotel soon after February 10th, and heard Reese and Murnan talking in the next room; Reese accusing Murnan of not treating him right, in "taking the deed that way," and Murnan excusing himself, and agreeing to make him a deed of his half of the property. Just what property was meant was not mentioned between them, and no deed was made; but, if such talk occurred, it undoubtedly related to this particular land. A large printed advertising card was scattered about the town, containing the business announcement of "Murnan and Reese, Owners of the Original Town Site of Kalama," who offer Kalama real estate for sale. Who distributed the card was not made clear, but it was done before the deeds were received, and one witness stated that Murnan himself gave him one of them. But it is from Murnan's letters that the most certain admissions are obtained. They are 20 or 30 in number, and are all entirely consistent with the theory of respondent. All relate to the same subject,-the sale of lots. Letter K, of April 20, says: "Yours received. I would not sell a _____ lot for less than $200. As soon as the town booms, we can get more than that. It is no use. We would spend it foolish, and you know that well. See what has become of the money we got. *** If you can sell a lot, do so, and send me half what you get." Other letters are of...