Robbins v. Kimball

• Decision Date: 06 February 1892
• Citation: 18 S.W. 457,55 Ark. 414
• Parties: ROBBINS v. KIMBALL
• Court: Arkansas Supreme Court

18 S.W. 457

55 Ark. 414

ROBBINS v. KIMBALL

Supreme Court of Arkansas

February 6, 1892

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Robbins brought suit against Kimball to establish a trust in favor of himself in a tract of land purchased by the latter. His contention was that Kimball and himself were partners engaged in buying and selling real estate, and that he furnished part of the consideration of the purchase under a parol agreement with Kimball that he should have a half interest in the land. Kimball denied the existence of such partnership or agreement, and alleged that he purchased the lands with his own means, but agreed with Robbins to sell him a half interest in the lands upon condition that he should pay half of the purchase money when due--which Robbins failed to do. The court dismissed the complaint. The facts appear in the opinion.

Affirm.

S. S Wassell and S.W. Williams for appellant.

The statute of fraud does not bar resulting trusts. Parol contracts to share in the profits of land speculations are upheld. 13 N.W. 894; 69 Tex. 685. In this case there is a resulting trust, even though Kimball has the legal title. 7 S.W. 525. A resulting trust may arise without money being actually paid. 42 Ark. 531. It may be proved by parol testimony. 40 Ark. 62. It must arise contemporarily with acquisition of title, as it did in this case. 40 Ark. 62; 30 id., 231; 29 id., 613. There is no proof that Robbins ever consented to the release. The fact that Robbins brought this suit immediately after being advised of the release shows his intention to disaffirm. The release must have been confirmed by acceptance before it became binding. 2 Wait's Ac. & Def., 494; 3 Md. 67; 4 Pick., 518; 16 Minn. 172. See the case in 47 F. 380, a case very nearly like this.

Jno. M Moore and S. R. Allen for appellee.

The plaintiff virtually abandons the partnership theory and claims a resulting trust. But Robbins never having paid a dollar, there is nothing to base a trust upon. A parol agreement does not raise a trust. 42 Ark. 408. If all Robbins says is true, there was a mere breach of a parol contract respecting the purchase of lands. 41 Ark. 399. There was no purchase by Robbins, and no payment by him to the owners, and therefore no trust. 13 Ark. 183-6; 45 id., 481. To raise a resulting trust the money must have been paid and the consideration for the purchase moved from the plaintiff at the time of the purchase. 40 Ark. 62; 29 id., 612, 630; 30 id., 230. The evidence must be clear and convincing (48 Ark 160), so as to leave no doubt. 11 id., 82; 50 id., 71. Perry on Trusts (2d ed.), secs. 133 to 137. But if he had any interest, he abandoned it by accepting the Shirk release. And his mortgage of the property immediately afterwards and his acts and words show conclusively his acceptance. The law of this case is settled by 69 Ind. 420, and 50 Ark. 71. See also 21 A. 522. If everything claimed by Robbins be true, he only acquired an option to participate in the purchase upon condition that he should pay his part. Having failed to do this, he will be held to have abandoned any rights he might have acquired by complying with the conditions. The court sustains the findings of a chancellor, unless clearly against the preponderance of evidence. 44 Ark. 219.

OPINION

COCKRILL, C. J.

If Kimball obtained the title to the land in controversy with his own means under a parol agreement with Robbins to let him have an interest in it on condition that he would pay one-half the expenses incurred in acquiring the title, the contract would be void by reason of the statute of frauds, and Robbins could take nothing through it. It could not be enforced for the further reason that Robbins has not complied or offered to comply with the condition by paying his share of the expense which it is admitted Kimball rightfully incurred. If the agreement was that Kimball was to purchase for the joint benefit of himself and Robbins, but the title was taken to himself alone, the contract would still be within the statute of frauds. If he used none of Robbins' means in making the purchase, there would be only the breach of a parol agreement which cannot raise a trust or form the basis of a title.

There is no evidence to warrant the conclusion that the parties were partners in buying and selling real estate. The only route by which Robbins can arrive at an equity in the land is to adduce from the evidence clear and satisfactory proof that Kimball made use of his means in making the purchase, and thereby establish an equitable interest in the land through the medium of a resulting trust.

It is material, therefore, to review the conflicting and recriminating testimony, in which the record abounds, only for the purpose of ascertaining whether any money of Robbins went into the purchase of the land. Beyond that it need not be noticed.

It is certain that Kimball purchased the right to acquire the title to the lands--an option, as the parties term it--for the sum of $ 5000, and that Robbins paid no part of it; also, that the then owner of the land executed a deed to Kimball in pursuance of that contract, when Kimball paid him the sum of $ 11,666.66 and gave him his two notes for like sums for the residue of the purchase price. Since that time Kimball...