Sutton v. Whetstone

• Decision Date: 10 July 1907
• Citation: 112 N.W. 850,21 S.D. 341
• Parties: SUTTON v. WHETSTONE.
• Court: South Dakota Supreme Court

112 N.W. 850

21 S.D. 341

SUTTON v. WHETSTONE.

Supreme Court of South Dakota

July 10, 1907

Appeal from Circuit Court, Deuel County.

Action by J. J. Sutton against Mary J. Whetstone. From a judgment for defendant, plaintiff appeals. Affirmed.

T. J Honeywell, T. J. Law, and C. X. Seward, for appellant.

H. H Potter, Albert R. Allen, and De Forrest Ward, for respondent.

CORSON J.

This action was brought by the plaintiff to quiet title to and recover possession of a tract of land in Deuel county comprising 80 acres. Verdict and judgment being in favor of the defendant, the plaintiff has appealed.

It is conceded that the legal title to the property is in the plaintiff; but the defendant contends that she is equitably entitled thereto, for the reason that the same was purchased for her and the money to purchase the same was furnished by her, and that the grantees, through whom the title passed from the admitted owner to the plaintiff, took title to the same with full knowledge of the defendant's equitable title thereto. It is disclosed by the evidence that the conveyance made by one Comport, under which the defendant claims an equitable title to the property, was made to Bernice Whetstone, a daughter of the defendant, and that she subsequently conveyed it to G. A. Whetstone, a son of the defendant, and by him the land was conveyed to one Cronkhite who died shortly thereafter, and subsequently the administrator of his estate, under proceedings in the probate court, conveyed the same to the plaintiff. It is claimed by the defendant that Bernice Whetstone paid no consideration for the property, and that all the consideration paid therefor was paid by the defendant. It is further disclosed by the evidence that Bernice Whetstone married one Knapp, and thereupon she, with her husband, conveyed said premises to her brother, G. W. Whetstone, with the consent of the defendant, her mother, and it is claimed by the defendant that said G. A. Whetstone paid no consideration therefor. There was evidence tending to prove that G. A. Whetstone contemplating a trip to the Philippine Islands, was advised by his mother and her attorney to convey the land to Cronkhite, who took the conveyance with full knowledge of all the facts and paid no consideration therefor; and the evidence tended to prove that the defendant had been and was in the exclusive possession of the property at the time these several conveyances were made and at the time the purchase was made by the plaintiff at the administrator's sale. It is contended by the plaintiff that the evidence on the part of the defendant tending to prove the agreement between Comport and the defendant and Bernice Whetstone and her mother at the time the conveyance was made to her and the agreement between Bernice, and her brother G. A. Whetstone at the time she and her husband conveyed the premises to him, and between G. A. Whetstone and Cronkhite at the time the conveyance was made to the latter, was inadmissible, for the reason that these conversations and agreements were not had in the presence of the plaintiff and were not binding upon him, and, further, that the evidence that no consideration was paid for the property by Bernice Whetstone, G. A. Whetstone, or Cronkhite was incompetent as tending to contradict the recitals of a consideration in the several deeds. While there are a great number of errors assigned in the record, in the view we take of the case, it will not be necessary to discuss them separately, as the objections above stated substantially embody the theory of the plaintiff, namely, as he had the legal title, it was not competent to divest him of that title and establish an equitable title in the defendant by the testimony introduced. The case was evidently tried by the defendant upon the theory that the conveyance by Comport to Bernice Whetstone impressed her with a resulting trust in favor of the defendant under the provisions of section 303, Rev. Civ. Code, which reads as follows: "When a transfer of real property is made to one person, and the consideration therefore is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." It will be observed that the trust referred to in this section results from the consideration therefor being paid by or for the party claiming the beneficial interest. Such a trust is ordinarily established by evidence proving clearly that, though the title is taken in the name of one party, the consideration therefor was paid by the party claiming the beneficial interest. Whatever occurs, therefore, at the time of the alleged purchase relating to the payment of the consideration by the party claiming the beneficial interest, is properly admissible for the purpose of establishing the trust. Mr. Perry, in his work on Trusts, thus states the law relating to such agreements: "The transaction out of which a trust results may be proved by parol. The statute of frauds extends to and embraces only trusts created or declared by the parties, and does not affect trusts arising by operation of law. Indeed, such trusts are specially excepted in the statute of frauds of most states. The exception, however, was omitted in the statute of Rhode Island; but Mr. Justice Story held that the omission was immaterial, as such trusts were excepted in the nature of things. It follows that a party setting up a resulting trust may prove by parol the agreements under which the estate was purchased, and he may prove by parol the actual payment of the purchase money by himself, or in his behalf, although the deed states it to have been paid by the grantee in the conveyance; and although the holder of the legal title has fraudulently or by mistake made a declaration that he holds the property for some other person, or states it to be for the use of the grantor, and although the trust, and all the circumstances out of which it arises, may be denied under oath in the answer, yet the facts may all be proved by parol in opposition to the answer." The law thus laid down by Perry was established in the case...