Smith v. Smith
| Decision Date | 16 June 1958 |
| Docket Number | No. 4771,4771 |
| Citation | 200 Va. 77,104 S.E.2d 17 |
| Court | Virginia Supreme Court |
| Parties | EUNICE GRAY SMITH v. AZOR WADE SMITH. Record |
A. Jeffery Bivins (Bivins, Jacobs & Bivins, on brief), for the appellant.
W. Hale Thompson, for the appellee.
This suit was brought by appellee, Azor Wade Smith, against his wife, Eunice Gray Smith, appellant, to obtain a divorce from the bond of matrimony on the grounds of adultery. In his bill of complaint, appellee prayed for the custody of their child, and that all property, real, personal and mixed, jointly owned with appellant, be divided equally between them. Appellant, in her answer and cross-bill, prayed for a divorce from bed and board on the grounds of desertion; custody of and support for the child; and that the property rights of the parties be settled in the suit.
The court by decree entered July 11, 1956, granted appellee a divorce a vinculo matrimonii. Custody of and support money for the child, then five years of age, were awarded appellant. In the same decree, ownership of a 1955 Pontiac automobile, titled in the name of appellant and appellee jointly, was awarded appellee. The appellee was ordered to pay the balance due on the automobile, and it was provided that any interest appellant might have in the car would be determined upon a final settlement of their property rights. The decree further directed one of the commissioners of the court to take and state an account of the property, real and personal, jointly owned by the parties, and to report his findings of fact, together with his recommendation for partition and distribution.
The evidence taken before the commissioner showed that the real property, the major portion of the household furniture and appliances, and the several automobiles owned by the parties had been purchased in their joint names. Appellee testified, without contradiction, that the purchase price of all of the property owned by them was paid out of their joint funds, to which each agreed to contribute according to their respective means. This fund, composed of the salaries and earnings of each of the parties, was deposited in a checking account in appellant's name.
In addition to contributing towards their normal living expenses, appellee contributed $100 and appellant $500 toward the purchase price of the first automobile they acquired after their marriage. The deferred purchase payments on this car and those subsequently acquired were paid from their joint earnings, culminating in the ownership of the 1955 Pontiac car. This car had a retail value of $2,370 as of July 31, 1956, and the balance then due on it was $1,350.
The commissioner found that appellant had earned and owned more monies than the appellee during coverture, that she had inherited $8,100 from her father's estate, of which $7,900 was used as a down payment on the purchase of a dwelling constructed on Lots 15 and 16, Block 18, in the City of Newport News, Virginia, conveyed to them as tenants by the entirety with the right of survivorship; that the $200 balance was used for water connections, etc.; and that appellee had contributed but $100 towards the initial payment. A deed of trust was placed upon the real property on April 27, 1954, for the principal sum of $4,500, which amount had been curtailed by payments from their joint earnings in the amount of $522.70.
The commissioner recommended that appellee be given sole ownership of the Pontiac automobile, and the appellant be required to execute such muniments of title as might be necessary to convey all of her interest therein to appellee. Although the commissioner found that the larger contribution of appellant towards the purchase of the real property did not cause a resulting trust to arise therein in her favor, he recommended that she be allotted the real estate, together with the furnishings, fixtures, appliances, and equipment therein contained. He added that appellee should be required to execute such miniments of title as might be necessary to convey his interest therein to appellant. Each party was to pay off and discharge any and all liens and encumbrances on the respective properties allotted to them.
The appellee excepted to the report on the grounds that the commissioner erred in his findings of fact and conclusions of law.
By decree entered January 14, 1957, the court held that appellant and appellee owned 'jointly and equally' the real estate, the household furnishings and effects and the Pontiac automobile. It ordered that since the real and personal property 'jointly and equally' owned by the parties was not susceptible to division in kind, it be sold at either private sale or public auction, provided neither of the joint owners was willing to purchase it and pay to the other the value of his or her interest therein. To that end commissioners were appointed to conduct such sale, and directed to report their actions to the court.
The granting of the divorce to the appellee and the awarding of custody of the child to the appellant, by the decree of July 11, 1956, are not issues in this appeal. The sole assignment of error is: 'that the adjudication in the decree of January 14, 1957, that the parties own jointly and equally the real and personal property enumerated therein is contrary to the law and the evidence.'
In connection with her assignment, the appellant says the following questions are involved:
'1. Where propery is conveyed to husband and wife as tenants by the entirety with right of survivorship, and the wife pays a greater portion of the purchase price than does the husband, does a resulting trust arise in the absence of evidence of a contrary intention?
The answer to the question whether a resulting trust arose is no.
A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein and where the inference is not rebutted and the beneficial interest is otherwise effectively disposed of. ' Vol 2, Restatement of the Law of Trusts, pages 1244, 1245.
In the recent case of Kellow v. Bumgardner, 196 Va. 247, 83 S.E.2d 391, we had occasion to state the general principles relating to resulting trusts. There we quoted with approval the following statement from Irvine v. Greever, 32 Gratt. (73 Va.) 411, 417: ' 196 Va., supra, page 253.
'* * * (If) there is evidence that the person who provided the money had some intention other than to secure the benefits for himself, the presumed intention fails and no resulting trust will be recognized.' 196 Va., supra, page 255.
Again, (Citing cases.) 196 Va., supra, page 256.
The real property involved in this proceeding was held by the parties as tenants by the entirety during their married life. Each was seized with the entire estate, and upon the death of one the survivor takes the whole. Neither could defeat the rights of the other by separate act. Thus a beneficial interest was created in each grantee at the time the property was acquired. The purchase of the automobiles and other personal property in joint names from joint funds also evidence a clear intention to create a beneficial interest in each party.
The cases of Throckmorton v. Throckmorton, 91 Va. 42, 22 S.E. 162, and Mumpower v. Castle, 128 Va. 1, 104 S.E. 706, relied on by appellant do not support her contention. The facts in each of those cases are different from those here. In the Throckmorton case, there was absence of proof that the wife's estate was used in paying for property conveyed to her husband. In the Mumpower case, there was evidence which indicated that the husband had committed a fraud upon his wife in having the real estate conveyed to him. In neither of the cases was there an estate by the entirety, or of joint ownership, involved.
See also Miller, et al. v. Blose's Ex'or, et al., 30 Gratt. (71 Va.) 744; Beecher v. Wilson, Burns & Co., 84 Va. 813, 6 S.E. 209; 54 Am. Jur., Trusts, sections 203, 204 and 205, pages 158 et seq.; 89 C.J.S., Trusts, § 128, page 990.
Cf. State v. Ellison, 290 Mo. 28, 233 S.W. 1065, and Hecker v. Vanbook, (Mo. 1922) 246 S.W. 337, not reported officially.
Under the second question, appellant insists that 'an equitable view of all the circumstances of the case requires that consideration be given to the source of the property' acquired as tenants by the entirety.
It should be here noted that upon the entry of a divorce decree, § 20-111, Code of 1950 *, became effective, and that the decree of reference was entered subsequent to the entry of the divorce decree.
Having concluded that there was no resulting trust in the real property, and that the...
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