Swendick v. Swendick

• Decision Date: 31 May 1930
• Docket Number: 6 Div. 553.
• Citation: 128 So. 593,221 Ala. 337
• Parties: SWENDICK v. SWENDICK.
• Court: Alabama Supreme Court

128 So. 593

221 Ala. 337

SWENDICK v. SWENDICK.

6 Div. 553.

Supreme Court of Alabama

May 31, 1930

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill to establish and enforce a resulting trust by W. M. Swendick against Ruth Swendick. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed and remanded.

Charles W. Greer and George Frey, both of Birmingham, for appellant.

W. P McCrossin and T. J. Lamar, both of Birmingham, for appellee.

BROWN J.

This bill is filed by the husband against the wife to establish and enforce a resulting trust to the extent of an undivided one-half interest in "Lot thirteen (13), Pettyjohn Subdivision of Block fourteen (14) of J. M. Ware's Subdivision, according to the Map of said Subdivision as recorded in the office of the Probate Judge of Jefferson County, Alabama."

As a predicate for this relief, the bill avers that: "After the Complainant and Respondent were married and had lived together for quite a while the Complainant bought a piece of property or real estate; that subsequently the property so acquired was exchanged for (the lot in question) as a part of the purchase price of the said lot so recently acquired in addition to said real estate given in exchange, there were other, further and large amounts of money required to be paid to the vendor and all of which was paid by the Complainant." That all moneys that went into both pieces of real estate were furnished by him out of his wages, and "by mistake or inadvertently the title to said real estate was taken in, and is held by the Respondent, when the real intention was to be that the property was to be treated as community property," etc. (Italics supplied.)

It is well settled that: "Where a person who purchases land in the name of another and pays the consideration money himself is under a natural or moral obligation to provide for the person in whose name the conveyance is taken, such as the wife or child, no presumption of resulting trust arises, but the transaction will be treated prima facie as an advancement for the benefit of the nominal purchaser. The inference which the law permits to be drawn in this class of cases is based on the common knowledge and experience of mankind in regard to the motive that usually accompanies transactions of this character." 26 R. C. L. 1225, § 71, and authorities cited under notes 8 and 9.

The presumption that an advancement or gift was intended is not however a presumption of law, but one of fact, and may be overcome by proof of the real intent of the parties as reflected in the conditions and circumstances attending the transaction. Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793; Wright v....