Shrader v. Shrader

• Decision Date: 07 April 1919
• Docket Number: 20510
• Citation: 81 So. 227,119 Miss. 526
• Court: Mississippi Supreme Court
• Parties: SHRADER v. SHRADER

81 So. 227

119 Miss. 526

SHRADER v. SHRADER

No. 20510

Supreme Court of Mississippi

April 7, 1919

[81 So 227, In Banc.]

1 TRUST. Resulting trust. Deed taken in husband's name.

Where land was purchased by a husband with his wife's money and the deed taken in his name when the understanding was that it should be taken in her name, in such case a resulting trust arose in favor of the wife.

2 SAME.

In such case where the wife only furnished a part of the purchase money a resulting trust arose in her favor for the part so furnished.

3. RESULTING TRUST. Estoppel to assert. Petition for letters of administration.

Where a man already wedded, married a second wife who was ignorant of the fact that he had another wife, and thereafter purchased land in his own name, with his second wife's money and took the title in his own name in violation of an agreement to place the title in her name, she was not estopped from asserting a resulting trust in such lands either because after his death she filed a sworn petition in the chancery court averring that her husband died intestate, seized and possessed of such land, nor by her conduct in knowing that the deed had been taken in her husband's name, and in failing to file a seasonable action in court to compel a conveyance from her husband in his lifetime.

4 SAME.

In such case where the property so purchased was thereafter used as a homestead, making it appear unnecessary for the second wife to reform the deed in order to secure the property on her husband's death, the husband would be estopped after ten years of married life with such second wife from pleading the illegality of the marriage in any contest with such second wife over property rights, where the second wife had no knowledge during such time, that she was not her husband's lawful wife.

5 MARRIAGE. Estoppel.

Under the facts in this case as set out in its opinion, the court held that the first wife was estopped to lay claim to the property bought by the husband with the second wife's money on the ground of illegality of the second marriage.

HON. E. N. THOMAS, Chancellor.

APPEAL from the chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Bill by Addie Schrader against Emma Schrader. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

J. B. Harris and Somerville & Somerville, for appellant.

As is stated in the main brief filed on behalf of the appellant this case clearly falls under the authorities described as constructive trust arising out of fraud. We wish to detail here a few of the cases which we think cover the various phases of the present record.

We wish to first call the attention of the court to the very able and painstaking opinion found in the case of Davis v. Cummins et al., which is reported in the 195 S.W. 752; all that we could say in support of the appellant and the justice of her case is said for us by the court in this case. In the Missouri case E. G. Davis went through the form of a marriage with Mary C. Davis and thereafter purchased property with her money and the court declares a trust in her favor and against the heirs of the deceased, E. G. Davis, in the following language:

"It clearly appears that through fraud E. G. Davis acquired possession of the money and property of Mary C. Grimes while insolvent himself, converted the same to his own use, received and appropriated to his own use the rents and profits of her land, and with her said money and property purchased the five-seventh and six-seventh interest in said three hundred and thirty acres and took the title thereto in his own name. It further appears that he continued said fraud up to the time of his death and during said period induced her to believe and she did believe, that he was her lawful husband. If both Davis and wife were alive and she were suing him in equity to divest him of the title to said real estate, acquired by him under the circumstances aforesaid, it would be our plain duty to declare a constructive trust in her favor, to hold him as trustee in invitum, and to divest him of the title to the property acquired through her means. Appellants occupy no better position upon this record than would E. G. Davis, himself, if he were alive, and sued by respondents. Philips v. Jackson, 240 Mo. 100, 335, 144 S.W. 112; Carey v. Griffin, 73 N.Y.S. 766, 36 Misc. 469, (15 Key Number Series 2075 J.); Michigan Trust Company v. Probasco, 63 N.E. 255-259; Batty v. Green, 92 N.E. 715-7; Pennington v. Acker, 30 Miss. 161, Code 1857, article 24, page 336; Code 1871, section 1779; House et al. v. Harden et al., 52 Miss. 867; Note in 87 A. S. R. 85.

We call the court's attention to two of the best recognized definitions of constructive trusts. We take these two definitions as quoted in 10 A & E. Encyclopedia of Law (1 Ed.), page 61; 2 Pomeroy's Eq. Jur., 616; 2 Story Eq. Jur. (13 Ed.), 604.

We respectfully submit that the decree of the chancellor should be reversed and a final decree rendered in the supreme court sustaining the cross-bill.

S.E. Davis, for appellee.

When the appellee in this case filed her petition in the chancery court of Sunflower county, to have the letters of administration which had been improperly granted to appellant in cause No. 2701, revoked, she set out her whole claim to the property of R. M. Shrader deceased, and the appellant was then fully advised as to her claim, and could have made her answer to that petition a cross-bill and asserted any claim which she may have had to the property involved in this case, but she did not see fit to do so, but elected to claim under him as his heir, and after having prosecuted that claim to a final termination, and having lost, she now comes back in this suit and tried to claim under an entirely different and inconsistent theory, and I respectfully submit to this court in all seriousness, that under the law, this cannot be done. She filed her answer in cause No. 2701 with all of the facts before her, except she did not know how this court was going to decide that case, and now since she has that information, she seeks to shift her position and take another route wholly different and inconsistent with the one she first took. Having elected what claim she would set up to this property, with all of the facts set before her, she is now bound by that election. In 16 Cyc. 785, the writer says: "Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another."

But if by any chance this court should be of the opinion that the appellant is not estopped from taking an entirely different and inconsistent position in this suit from the one assumed by her in cause No. 2701, still on her own proof alone, accepted at its full face value, she is not entitled to have a trust declared in her favor on the land involved in this suit. When and under what circumstances does a trust either resulting or constructive arise? And what sort of proof is necessary to establish a trust of this character? In 39 Cyc., page 128, the writer says:

"A resulting trust must arise, if at all, from the state of facts existing at the time the legal title to the property is acquired, and cannot arise from matter coming into existence afterwards." Bowman v. O'Riley, reported in 31 Miss. 261; Gee v. Gee, 32 Miss, 190; Gibson v. Foot, 40 Miss. 788; Mahoner v. Harrison, 13 S. & M., 53; McCarroll v. Alexander, 48 Miss. 128.

I submit to the court, that all of the proof offered by appellant in this case falls far short of the proof necessary to establish her claim. In 39 Cyc., page 152, the writer says: "A constructive trust cannot be established by mere preponderance of evidence, but must be established by evidence which is clear, definite, unequivocal, and satisfactory."

And in the case of Moore v. Crump, reported in 84 Miss. 612, the court says: "A constructive trust as a result of fraud, can be established only upon clear and convincing proof of such fraud." And in the case of Logan v. Johnson, reported in 72 Miss. 185, the court says: "Where the existence of a resulting trust depends upon parol proof, the evidence must be clear, strong, unequivocal, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt.

In the case of Lofton v. Sterret, reported in 2 So. 837, the court says: Where the testimony not only fails to show that the complainant is the equitable owner of any definite interest in the real estate, but does show acts and conduct on his part inconsistent with a claim of such ownership as against the parties holding the legal title, the trust should not be decreed." Logan v. Johnson, reported in 16 So. 231.

The greater part of the argument of counsel for appellant and practically all of the authorities cited by him are based on the theory that the money used in paying for the land in controversy, belong to the appellant, but as their proof does not bear out their contention, and the chancellor having decided against them on that point, the authorities cited by them are not applicable. If the land had been acquired by R M. Shrader by means of his fraudulent pretended marriage with appellant, or had acquired her funds to pay for the land by fraudulent means, their contention would be correct and the authorities cited by them would apply. But the chancellor has decided that the land was not bought with appellant's funds, and it certainly was not acquired by the fraudulent pretended marriage with appellant R. M. Shrader--who claimed this land from the day the deed was delivered...