Sims v. Sims

• Decision Date: 30 June 1953
• Docket Number: 4 Div. 725
• Citation: 259 Ala. 296,66 So.2d 445
• Parties: SIMS v. SIMS et al.
• Court: Alabama Supreme Court

Page 445

66 So.2d 445

259 Ala. 296

SIMS v. SIMS et al.

4 Div. 725.

Supreme Court of Alabama.

June 30, 1953.

C. L. Rowe, Elba, for appellant.

J. A. Carnley, Elba, for appellees.

STAKELY, Justice.

The bill in this case is filed for the purpose of establishing a resulting trust in certain lands lying in Coffee County, Alabama, in favor of Mrs. Mary Sims (appellant) and against the heirs at law of her deceased husband, J. M. Sims. The lands are described in a deed made to J. M. Sims as grantee by C. J. Bradley and wife Ollie Bradley on November 13, 1945. The evidence was taken before a commissioner and on submission for final decree the court refused to establish a resulting trust. The appeal here is from that decree.

The result is that the appellant seeks to engraft a resulting trust upon a conveyance absolute in its terms. Our cases make it abundantly clear and with good reason that when this result is sought there is a presumption that the conveyance speaks the whole truth and must prevail until the contrary is established beyond reasonable controversy. Banks v. Banks, 253 Ala. 252, 44 So.2d 10. There is no doubt that in cases of the character now under consideration the evidence offered by the complainant must be clear strong, unequivocal and unmistakable and if proof of the fact of payment is doubtful, uncertain or unsatisfactory relief will be denied. Holt v. Johnson, 166 Ala. 358, 52 So. 323; Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809; Merchants Nat. Bank of Mobile v. Bertolla, 245 Ala. 662, 18 So.2d 378; Hooks v. Hooks, Ala.Sup., 63 So.2d 348.

We have considered the evidence in this case with great care and like the trial court, we are not satisfied that it is so clear and convincing as to meet the requirements of our cases. It is not practicable to set out all the evidence which tends to make up the factual issue in this case, but we do state enough of the evidence to show the basis of our uncertainty.

The evidence showed that at the time the deed was executed, Mrs. Mary Sims took $1,000 in cash from her purse, $100 being in each of ten separate envelopes, and paid the money, but there is uncertainty as to whether this money belonged to her or was the property of her husband.

Mrs. Mary Sims contends that the money was earned by her from savings made by her when she conducted a store in partnership with her father in Montgomery County and then near Orion in Pike County. When her father died she continued in business with her mother and when her mother died, she operated the store alone. She and her husband, together with her mother and father, occupied living quarters in connection with the store. Her husband, however, was a busy and energetic man. He conducted farming operations, was engaged in performing services as a mechanic in the community and there is evidence tending to show that he was interested in the store.

Before J. M. Sims and his wife moved to Coffee County, they sold the farm in Pike County, which stood in the name of J. M. Sims. When asked about the source of the money which was paid for the property in Coffee County, Mrs. Mary Sims did not know where the money came from, except that she worked for it. Although she said that she sold her place when she moved to Coffee County, the deed in evidence dated August 17, 1945, shows that the property stood in the name of J. M. Sims and that he received $3,000 as the price for the same. Bank books were introduced in evidence which showed accounts in the name of J. M. Sims or Mary Sims. Three Thousand Dollars was deposited in the Troy Bank & Trust Company on August 17, 1945 and $1,000 was deposited in the account in the First Farmers & Merchants National Bank on August 17, 1945. When she was asked in reference to the $1,000 paid in cash for the property here involved, 'Well, that was yours and his money you had in your pocket book that day, wasn't it?', she replied, 'No, that was mine. He had $1,000.00 and he deposited his and I put mine in the land.' When she was asked how much she got from the store, she replied, 'I just don't particularly know how much.' She further testified with reference to the money which she had in her purse and which was paid at the time the Coffee County property was purchased, 'Where did you get that money you had in your purse?', she replied that she worked for it, that she had it a good long...