Rose v. Rose

• Decision Date: 13 February 1884
• Docket Number: 9504
• Citation: 93 Ind. 179
• Parties: Rose v. Rose
• Court: Indiana Supreme Court

93 Ind. 179

Rose v. Rose

No. 9504

Supreme Court of Indiana

February 13, 1884

From the Wayne Circuit Court.

The judgment is affirmed, with costs.

H. C Fox, L. C. Abbott and -- Hayward, for appellant.

H. U Johnson, for appellee.

OPINION

Niblack J.

The complaint in this case was filed on the 27th day of April, 1881, and, as afterwards amended, charged that the appellant, Thomas Rose, was, on the 24th day of September, 1867, married to the appellee, Helen M. Rose; that at the time of their marriage the parties resided, and have ever since continued to reside, in the city of Richmond in this State; that at the time of the marriage the appellee was by occupation a milliner, but was without property or means of her own; that in the spring of 1871, it was agreed between them that the appellant should furnish the appellee with means sufficient to enable her to start a millinery store, which he accordingly did at that time; that the appellant afterwards, from time to time, furnished the appellee additional means which she invested as capital in her business; that on the 1st day of May, 1880, the appellee wrongfully abandoned the appellant, and has ever since, without just cause, continued to reside separate and apart from him; that said business had been successful and remunerative; that in making it thus successful and remunerative, the appellant had contributed his labor as well as his money, with the express understanding that he actually had, and was to continue to have, an interest in said business; that with the understanding that the parties were to be mutually interested in the property thereafter to be acquired by their joint efforts, the appellant expended a large amount of both labor and means in the reconstruction and improvement of the house then occupied by the appellee as a millinery store, for which he had received no compensation; that in all cases in which he had purchased real estate, the appellant had either promised or permitted the title to be conveyed to and vested in the appellee, with the express understanding and agreement that he and she were to be jointly interested in the same; that for large expenditures made by him in the purchase and improvement of several lots of ground thus purchased by him and held by her, he had received nothing by way of compensation or remuneration; that during the entire time they had lived together as husband and wife, the appellant had paid all the family expenses in order that the appellee might devote the means invested in her business solely to the accumulation of property for their joint benefit; that the appellee had thus fraudulently procured the title of the appellant's real estate to be conveyed to her, and obtained from him large amounts of personal property, with the intention of ultimately abandoning and obtaining a divorce from him; that the real estate so conveyed to the appellee was of the aggregate value of $ 20,000; that she, in addition, owned and had in her possession personal property of the value of $ 15,000; that besides the labor contributed, the appellant had expended at least the sum of $ 5,000 in purchasing real estate in the name of the appellee, and in establishing her in business, as herein above stated; that the appellee, for the fraudulent purpose of getting more complete possession and more exclusive control of all the property, obtained and held by her as above set forth, had, on the 12th day of April, 1881, filed her petition in the Wayne Circuit Court, demanding a divorce from the appellant, and falsely charging him with cruel and inhuman treatment during a long period prior to the time of her abandonment of him as above charged; that the appellee had refused to make any equitable arrangement with him for the division of the property held by her, and that by reason thereof the appellant was left in a destitute and dependent condition. Wherefore the appellant demanded judgment for the amount which might be found to be reasonably due him in the premises; that the amount of such judgment should be decreed to be a lien upon the real estate held by the appellee; that such real estate might, if necessary, be sold to pay and discharge such lien and all other proper relief.

The circuit court sustained a demurrer to the complaint, and, upon a failure to plead further, final judgment upon demurrer was rendered against the appellant.

Considering its several averments with reference each to the other, and in connection with the relief demanded, we find ourselves involved in much doubt as to the precise theory upon which the complaint, a careful synopsis of which is above given, was formulated and prepared.

The appellant insists in argument that, upon the facts alleged, a trust estate was created in his favor in one undivided half of the property acquired by the means stated, and held by the appellee, and that the complaint ought to be construed as a demand by him, as cestui que trust, against her as trustee, for the settlement of an estate placed in her hands under circumstances entitling him to share in its proceeds.

It is true, as claimed, that a married woman may become the trustee of her husband. Perry...