Thornton v. Rodgers

• Decision Date: 20 January 1949
• Docket Number: 6 Div. 780.
• Citation: Thornton v. Rodgers, 251 Ala. 553, 38 So.2d 479 (Ala. 1949)
• Parties: THORNTON v. RODGERS.
• Court: Alabama Supreme Court

38 So.2d 479

251 Ala. 553

THORNTON v. RODGERS.

6 Div. 780.

Supreme Court of Alabama

January 20, 1949

James H. Bradford and Jackson, Rives & Pettus, all of Birmingham, for appellant.

H. L. Anderton, of Birmingham, for appellee.

The agreement of the parties is as follows:

'This Agreement made the ninth day of November, 1943, between J. L Thornton, residing in Reno, Nevada, First Party, and Alice Thornton, residing in Birmingham, Alabama, Second Party.

'Witnesseth Whereas the parties are husband and wife, but for some time last past have been separated; and

'Whereas the First Party has instituted an action for divorce in Washoe County, Nevada, which action is No. 78349, Dept. No. 2; and

'Whereas, both parties are of the opinion that it is desirable to enter into an agreement under which they may continue to live separate and apart, and under which fair and reasonable provisions shall be made for the maintenance and support of the Second Party.

'Now, Therefore, in consideration of the premises and of the mutual covenants and agreements herein set forth, and for other good and valuable consideration, the parties agree as follows:

'1. The First Party will pay to the Second Party the sum of $85.00 on the fifth day of each month, commencing December 5, 1945, said monthly payments to continue until the death or remarriage of the Second Party.

'2. The Second Party shall have the right to occupy as her home the house and premises known as No. 5329 9th Avenue South, in the City of Birmingham, Alabama, so long as either the son of the parties, to-wit: James Thornton, or the daughter of the parties, to-wit: Nina Thornton Strickland, shall live in and occupy the same with the Second Party under arrangements to be made by and between them. In the event that the said James Thornton or the said Nina Thornton Strickland shall not live with the Second Party in the said premises, the right of the Second Party to occupy the same shall cease upon First Party providing her the house and premises known as No. 5321 9th Avenue South, in the City

of Birmingham, to be used and occupied as her home during her life time, but for no other purpose, or shall provide her with a home in said neighborhood which shall be a substantial equivalent thereof both as to premises and furnishings.

'The Second Party shall pay taxes, insurance and maintenance on the premises that she occupied under this agreement.

'3. The Second Party shall have and own the automobile now in her possession.

'4. Neither this agreement, nor the decree of any Court approving this agreement shall constitute any lien or claim against any property now owned or hereafter acquired by the First Party.

'5. This agreement is made for the purpose of removing the subject matter thereof from the field of litigation. In the event that a divorce is granted in the above described action, this agreement shall become effective and not otherwise.

'In Witness Whereof, the parties have executed this agreement the day and year first above written.

'J. L. Thornton, First Party

'Alice Thornton, Second Party.'

STAKELY, Justice.

This is an appeal from a decree of the equity court overruling the demurrer to the bill of complaint. Two questions are presented, (1) whether an alleged resulting trust is barred by laches or the statute of limitations and (2) whether the claim of a resulting trust has been concluded by agreement between the parties.

J. L Thornton (appellant) and Alice Thornton Rodgers (appellee) were married November 12, 1913. They lived together as man and wife until he obtained a divorce from her in Reno, Nevada, on or about November 6, 1943. Attached to and made a part of the divorce decree is an agreement entered into between the parties. The agreement will appear in the report of the case.

On June 17, 1925, J. L. Thornton after consultation with his wife and with her consent took $3,000 of her separate estate which came to her from Birmingham Gas Company as damages for personal injuries suffered by her in a gas explosion and invested this money with about the same amount of his own in real estate. Thereafter he retained and reinvested these funds and the increase thereof in other properties for their benefit and according to their agreement. Being in the real estate and construction business, he continued to build and sell, using the funds for that purpose until he thereby accumulated considerable properties. He took title in his own name.

Without having repaid to her the original $3,000 or any part thereof or the increase therefrom, eighteen years after he took his wife's money, he obtained the divorce as aforesaid and soon thereafter remarried. At that time she was an invalid in a rolling chair and on crutches and suffered from severe arthritis with which she had been afflicted since 1936, so that she was physically and mentally unable to attend to her business affairs. It is alleged that she signed the agreement attached to the divorce decree while she was suffering and confused and without realizing the significance of what she was doing, that she did so without independent advice and in fear that he would drive her out of a place to live. She remarried in 1947.

The properties in which the alleged investments were made are described in the bill of complaint and include the house in which Alice Thornton Rodgers now resides and which is referred to in the agreement attached to the aforesaid divorce decree. Appellant has contracted to sell this particular piece of property and has given appellee two notices to vacate it. We set out the following portions of the bill.

'Complainant shows to the Court that before making the original investments as above set forth respondent discussed with her each and all said investments and received her consent and approval that said investments be made and that he discussed with her (his wife) all sales and reinvestments of the said original investments and received her approval of the same from the time of said original investments to the time he began to plan to get the Reno divorce in 1943, during which time respondent never at any time questioned complainant's said interests in the properties.

'Complainant avers that at no time after respondent invested her said separate estate in the original properties and before he revealed to her his plan to divorce her in 1943 did he ever at any time assert any adverse rights to or interest in the equities of complainant which accrued to her because of his investment of her said separate estate. At no time during that period did respondent say to complainant, or by word or action indicate to complainant, that he did not intend to keep in trust and render back to complainant her said interest in the original properties or in the properties of the reinvestment. She had no notice nor knowledge of respondent's purpose or plan to deprive her of her interest in said properties until he prevailed on her to sign the agreement dated November 9, 1943, preparatory for obtaining said divorce, in which he was to give her $85.00 a month to live upon, and which provided that the home alloted her could be shifted around on certain conditions, and which provided that even those privileges would not be effective unless he succeeded in obtaining the contemplated divorce from complainant. Up to this time complainant believed that on account of her trust in respondent and the confidential relations between them as husband and wife respondent would so conduct the business as to repay to her her equitable interest in all properties in which they were jointly financially interested. * * *

'Before complainant turned over to respondent her said separate estate of $3,000.00 for him to invest for her along with his money, they discussed the advisability of complainant's thus investing her said money and respondent told complainant he would take care of her interests in the investments thereafter made. After she turned over her said $3,000.00 to respondent for the investments they moved from place to place on the properties which complainant purchased and sold with their funds and on these occasions respondent told complainant, his wife, that he was taking care of her interests for her. On some of these occasions he said in effect if not in the exact words, 'you need not worry, I am looking after your interests to the properties.''

It is a settled principle that a 'resulting trust will be decreed in favor of wife where husband invests her moneys in real or personal property and takes title in his own name.' Mandelcorn v. Mandelcorn, 228 Ala. 590 154 So. 909, 911, 93 A.L.R....