Tanous v. White

• Decision Date: 09 October 1939
• Docket Number: 33762
• Citation: 191 So. 278,186 Miss. 556
• Court: Mississippi Supreme Court
• Parties: TANOUS et al. v. WHITE et al

191 So. 278

186 Miss. 556

TANOUS et al. v. WHITE et al

No. 33762

Supreme Court of Mississippi, Division A

October 9, 1939

Suggestion Of Error Overruled November 20, 1939.

APPEAL from the chancery court of Warren county HON. J. L. WILLIAMS Chancellor.

Suit by Garfield White and another against George Tanous and another to require the named defendant to convey to the plaintiffs' land, the title to which defendants held in trust for the plaintiffs. Decree for plaintiffs, and defendants appeal. Affirmed.

Affirmed.

Chaney & Culkin, of Vicksburg, for appellants.

It is only where one actually advances money for the purchase of the land, before the transaction is closed, that takes the transaction out of the statute of frauds. The money, it has been repeatedly held, must be advanced for the specific purpose of buying the property, and the purchaser, or the one who places the property in his own name, must take advantage of the trust imposed upon him, before a constructive or resulting trust may be established; otherwise, it is clearly within the statute of frauds.

In the case of Logan v. Johnson et al., 72 Miss. 185, our Supreme Court, on this point, said:

"Where it is necessary to prove by parol the existence of a trust 'the evidence must be clear, strong, unequivocal, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt.' 2 Pom. Eq., sec. 1040."

Gibson v. Foote, 40 Miss. 788; McCarroll et al. v. Alexander, 48 Miss. 128; Bush v. Bush, 134 Miss. 523.

Under the foregoing authorities, in order that a resulting trust may arise, in favor of one furnishing the money, in whole or in part, to purchase land, it is absolutely indispensable that the payment of the purchase money should be actually made by the complaining party, prior to or at the time of the conveyance. No subsequent payment will create the trust. It is not contended by the appellees, looking at their testimony in the most favorable view point, that they contributed anything whatsoever to the purchase price of the land in question. They cleared some land, they stated, but this was done for Captain Punchard before he sold it to the appellant. They stated, also, that they cleared some land after the appellant purchased it, but they did not state, and did not undertake to state, that they contributed any money or labor toward the purchase price of the land, prior to or after it was sold to the appellant. Under the foregoing authorities, it is also well established by this court that evidence to establish a resulting trust, including the fact of the payment, in whole or in part, of the purchase money by the complaining parties, at or before the time of the conveyance of the land, must be strong and unmistakable. In fact, it has been held that the proof must be convincing beyond a reasonable doubt.

No agreement as to any specific amount the appellees were to pay the appellant for the land is shown by the record. No interest rate was agreed upon, nor was there any agreement about the cost of placing the house on the land and clearing the land, preparing it for cultivation, nor was there any agreement as to the manner in which the money was to be paid to him, when the payments were to be made or how they were to be made, even under the testimony of the appellees. Certainly it cannot be said that their credit contributed anything to the purchase price of the land, for the reason that they had no credit.

The appellant, even under the most favorable construction of the testimony of the appellees, entered into no contract with them that he could have enforced against them. They repeatedly stated, throughout their testimony, that the appellant bought the land with his own money and agreed to rent it to them for a year and then sell it to them. They repeatedly stated, also, that they did not contribute anything whatsoever toward the purchase price of the land.

Wax v. Pope, 168 So. 54.

Even if the testimony, however, was sufficient to warrant the court in rendering a decree in favor of the appellees, the appellant would have been entitled to the rent for the first year, for the reason that the appellees testified that they were to pay rent the first year, under the contract they had entered into with Captain Punchard. The appellant also would be entitled, even if the evidence warranted the findings of the chancellor, to credit for $ 300.00 for the house which was put on the land after he bought it. Likewise, he would have been entitled to credit for $ 175.00, which he paid for clearing the land, and to $ 10.00 or $ 15.00 for having the land surveyed, as well as for all taxes paid out by him after he acquired title. The appellant was given credit for none of these items.

Brunini & Brunini and William I. McKay, all of Vicksburg, for appellees.

Section 3348 of the Code, governing the creation of express trusts, has no application to the case at bar, that is, to a trust implied or created by equity, for the statute concludes: "but where any trust shall arise or result, by implication of law, out of a conveyance of land, such trust or confidence shall be of the like force and effect the same as it would have been if this statute had not been passed."

Jones v. McDougal, 32 Miss. 179; Bratton v. Rogers, 62 Miss. 281; Hebron v. Kelly, 75 Miss. 74; Robinson v. Leflore, 59 Miss. 148; Barton v. Magruder, 69 Miss. 462; Dooly v. Pinson, 39 So. 664; 26 R. C. L., 1232, Sec. 78; 26 R. C. L. 1233, Sec. 79; 26 R. C. L. 1244, Sec. 90.

From that part of the annotation on the subject, beginning on page 21, 42 A.L.R., we quote:

"The decisions appear, upon the whole, to warrant the statement that if it was distinctly agreed before the purchase that the sum paid shall be considered as a loan from the purchaser to the person claiming the benefit of the purchase, then the money employed in making the purchase, though paid directly to the grantor by the grantee, must be considered the money of the promisee; and the case is governed by the rule that where a purchase is made in the name of one with the funds of another, a trust results in favor of such other, or, as it is sometimes put, the transaction amounts to an equitable mortgage."

Lehman v. Lewis, 62 Ala. 129; Hodges v. Verner, 100 Ala. 612, 13 So. 679; Dooly v. Pinson, 145 Ala. 659, 39 So. 664, Hughes v. Letcher, 168 Ala. 314, 52 So. 914; Hidden v. Jordan, 21 Cal. 92; Sandfoss v. Jones, 35 Cal. 481; Walton v. Karnes, 67 Cal. 255, 7 P. 676; O'Connor v. Irvine, 74 Cal. 435, 16 P. 237; Hellman v. Messmer, 75 Cal. 166, 16 P. 766; Brown v. Spencer, 163 Cal. 589, 126 P. 493; McPherrin v. Fair, 57 Colo. 333, 141 P. 472; Caruthers v. Williams, 21 Fla. 485; Smith v. Sackett, 10 Ill. 534; Coates v. Woodworth, 13 Ill. 654; Wright v. Gay, 101 Ill. 233; Furber v. Page, 143 Ill. 622, 32 N.E. 444, Towle v. Wadsworth, 147 Ill. 80, 30 N.E. 602; 35 N.E. 73; Henry v. Britt, 197 Ill.App. 167; Krebs v. Lauser, 133 Iowa, 241, 110 N.W. 443; Payne v. McClure Lodge, 115 S.W. 764; Kendall v. Mann, 11 Allen 15; Jackson v. Stevens, 108 Mass. 94; McDonough v. O'Niel, 113 Mass. 92; Fickett v. Durham, 109 Mass. 419; Hutchings v. Clerk, 225 Mass. 483, 114 N.E. 746, Ann. Cas. 1917C, 979; Robinson v. Leflore, 59 Miss. 148; Thomas v. Thomas, 62 Miss. 531; Hebron v. Kelly, 75 Miss. 74, 21 So. 799; Wilson v. Hoffman, 104 Miss. 743, 61 So. 699; Comfort v. Winters, 108 Miss. 330, 66 So. 532; Marcellus v. Wright, 51 Mont. 559, 154 P. 714; Dickson v. Stewart, 71 Neb. 424, 115 Am. St. Rep. 596, 98 N.W. 1085; Boyd v. McLean, 1 Johns. Ch. 582; Getman v. Getman, 1 Barb. Ch. 499; Safford v. Hynds, 39 Barb. 625; Modern Baking Co. v. Orringer, 271 Pa. 152, 114 A. 264; Brenner v. Brenner, 29 Pa. Dist. R. 23; Salter v. Gentry, 61 Tex.Civ.App. 526, 130 S.W. 627; Schutz v. Harris, 149 S.W. 242; Borrow v. Borrow, 34 Wash. 684, 76 P. 305; McSorley v. Bullock, 62 Wash. 140, 113 P. 279; Harvey v. Shipe, 78 W.Va. 246, 88 S.E. 830.

The precise question is put at rest by this court in the case of Wilson v. Hoffman, 104 Miss. 743; Comfort v. Winters, 108 Miss. 330.

OPINION

Anderson, J.

Appellees, Garfield White and Jim Jenkins, filed their bill in the Chancery Court of Warren County against appellants. George Tanous and another whose interest is not necessary to be referred to, to require Tanous to convey to them eighty-seven acres of land, the title to which they claim was held by him in trust for them and which, under the terms of the trust, he was then due to convey to them. They offered, with their bill, to pay the amount which would entitle them to a conveyance. The decree was in favor of appellees upon condition that they pay to appellant the balance due him on the purchase price of the land, $ 291, with accruing interest. From that decree, appellant appeals.

The chancellor, in his decree and opinion, made a part of the record, either expressly or necessarily found the following to be the material facts of the case, and the evidence justified such findings: Captain Punchard owned several tracts of land in the Delta portion of Warren County. One of the tracts was the eighty-seven acres involved in this case. He had this eighty-seven acres leased to appellees, two negro tenants, and had been so leased for several years. They were living on it as their homes. They had cleared and brought a good deal of it into cultivation. Captain Punchard decided to dispose of his land holdings, including the tract here involved. He was very anxious for appellees to purchase it and continue to use it as their homes. For reasons satisfactory to him, he preferred not to sell it on time but for cash. He stated, however, that he would sell it to appellees on time if they were unable to get someone else to finance the purchase. The price fixed was $ 600, which, the...