Smith v. Tubley.

• Decision Date: 29 January 1889
• Citation: 32 W.Va. 14
• Parties: Smith v. Tubley.
• Court: West Virginia Supreme Court

32 W.Va. 14

Smith

v.Tubley.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1889.

Decided January 29, 1889.

1. Husband and Wife Resulting Trust.

Qucere, whether a resulting trust arises in favor of a wife, if the husband acquires property with her separate estate, and without her knowledge and consent takes title in his name. If so, the proof must be clear and explicit to establish that fact especially against husband's creditors.

2. Husband and Wife Resulting Trust.

Long lapse of time will defeat its enforcement, (p. 16.)

3. Husband and Wife-Resulting Trust.

It must arise at the time the title is taken. No subsequent oral agreement or payment will create it. (p. 17.)

4. Husband and Wife Resulting Trust.

The wife is incompetent to prove any transaction or communication personally between herself and her husband going to create or sustain the trust or any admissions by him of its existence, not only as against his heirs, but also his creditors seekingto subject the property, (p. 20.)

5. Answer New Matter Reply Common-Law Pleading.

An answer containing new matter calls for reply in writing under secs. 35, 36, ch. 125 Code only when such new matter in its nature, as applied to the cause, calls for affirmative relief against some of the parties and is not simply matter of defence of plaintiff's case; and it may by its matter call for such reply only from certain of the parties and not from others, or only as to part of its matter and not as to the residue thereof, (p. 19.)

6. Parties.

The personal representative must be a party before debts can be decreed against a decedent's estate, (p. 20.)

Simms &Enslow for appellant.

J. H. Ferguson for appellee. Brannon, Judge:

In 1860 Elijah Turley purchased in his own name a tract of 292 acres of land in Cabell county at a sale under decree, and a deed was made to him. He held the land until his death in 1884, leaving Agnes Turley, his widow, and certain children. In February, 1885, D. L. Smith filed his bill in equity in the Circuit Court of Cabell county to sell this land to pay judgments recovered against Elijah Turley in 1877, making Agnes Turley and said children defendants. Agnes Turley filed her answer alleging that said land had been purchased by Elijah Turley with money belonging to her, derived from two deceased uncles; that part of the money ($637.49) derived from one of the uncles she directed her husband to invest in this land, it being distinctly understood between her and her husband, that the title to said land, when purchased, should be conveyed to her, and that she always understood and believed during his life, that it had been conveyed to her, and never knew to the contrary until after his death; that he always called it her land; and that afterwards she derived about $2,200.00 from the estate of another uncle, out of which she paid the balance of the purchase-money not paid at the time of the purchase.

It appears from the evidence, that in 1860 $637.49, money of Agnes Turley and her sister from an uncle's estate, was paid on the land by their receipting to the commissioner for that amount on their shares in the proceeds of the sale of the land of the uncle's estate, said tract of 192 acres being a part thereof; and that in 1870 $1,200.00 out of the $2,200.00 derived by Agnes Turley from another uncle was paid on the land. Under a reference the plaintiff's and various other debts considerable in amount were reported against Turley's estate.

In her answer Agnes Turley prayed that said land be exempted from debts of her husband, and that his heirs be required to convey the legal title of the land to her in execution of the alleged trust. The court held the land not liable to Turley's debts and dismissed Smith's bill, and Smith obtained an appeal to this Court.

The claim of Agnes Turley to exempt the land is based on the theory of a resulting trust from the purchase of the land with her money under agreement with her husband, that it was to be acquired in her name. In McGinnis v. Curry, 18 W. Va. 64, Judge Gheen says: "It is well settled, that, where upon a purchase of property the conveyance of the legal title is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting trust immediately arises from the transaction, and the person named in the conveyance will be a trustee for the party, from whom the consideration proceeds." And it seems that where a husband purchases land in his own name with the separate estate of his wife, a trust arises in her favor. 1 Perry Trusts, § 127, citing many cases. Usually a trust comes from the fact, that the wife's money has been used in the purchase, and without her knowledge or consent the deed is taken in the husband's name. Wells, Mar. Wom. §§ 213, 214, p. 258.

But Mrs. Turley's case does not meet the requirements of the law. The deed to her husband was made in May, 1860. The purchase had been confirmed in his name by decree in the open court prior to the date of the deed, and the deed was put on the public record in 1867, and she allows this important matter to sleep, and her husband to die as late as 1884 without obtaining a deed, taking no step to assert her claim, until her husband's creditors attack the land, when she filed her answer, in February, 1885. In substantially the language of Judge Christian in Miller v. Blose's Ex'r. 30 Gratt. 750, after the lapse of a quarter of a century it is claimed, that this land, though held by Turley for this great length of time under a deed absolute on its face and long on record informing his creditors and the world, who chose to deal with him, that the land was absolutely his, can not be subjected to his debts, and that he held the naked legal title as trustee for his wife. Courts will not enforce a resulting trust after a great length of time or laches on the part of the supposed cestui que trust. Pusey v. Gardner, 21 W. Va. 470. Lapse of time, when not a statutory bar, operates in equity as evidence of assent, acquiescence or waiver. Same case, point 7 of syllabus.

In Troll v. Carter, 15 W. Va. 582, Judge Green says: "So too all the authorities agree, that an equitable claim of any sort and especially one, which depends on parol testimony only, will not be recognized after great lapse of time, during which it has been ignored, where no satisfactory reason can be assigned for not setting up the claim sooner. And this is more especially true, when the equitable claim is of a character, which required clear and explicit evidence to sustain it; such lapse of time itself rendering the evidence, which might otherwise have been regarded as sufficiently clear and explicit, unsatisfactory."

The fact, that defendant's husband being indebted and knowing the land to be in danger from his debts should let the matter lie, and die without executing a deed to satisfy this call upon his conscience, is.a circumstance against the claim she now sets up. On the facts developed by the evidence the case is not strong enough. The court of Virginia in Miller v. Blose, 30 Gratt. 751, says that "the evidence to establish such a claim, in the face of absolute deeds so long of record, must be very clear and explicit, and such as to leave no doubt as to the character of the transaction." The facts must be proved with great clearness and certainty. 1 Perry Trusts, §137. Judge Green in Troll v. Carter, 15 W. Va. 582, says that, "if the statute of frauds in any case be inapplicable, and a trust of land be permitted to be established by parol evidence, to establish such a trust the evidence must be full, clear and satisfactory." See Bank V. Carringlon, 7 Leigh, 556.

Again, a resulting trust must arise at the time of the execution of the conveyance; for a resulting trust can not arise by after-agreement, by matter ex post facto. Judge Snyder's opinion in Murry v. Sell, 23 W. Va. 480; 1 Perry Trusts, § 133, Payment before or at the time of the purchase is indispensable. A subsequent payment will not by relation attach a trust to the original purchase. Miller v. Blose, 30 Gratt. 751. As the money paid in 1860 was under the law the husband's, as the wife's then existing estate when realized would be his, no trust could then arise from its payment. Subsequent payment of other money, though her separate estate, years after the legal title had been conveyed...