Turner v. Turner
| Decision Date | 18 July 1912 |
| Docket Number | Case Number: 1845 |
| Citation | 125 P. 730,1912 OK 507,34 Okla. 284 |
| Parties | TURNER v. TURNER. |
| Court | Oklahoma Supreme Court |
¶0 1. TRUSTS--Establishment--Constructive Trust--Validity of Oral Trust. One brother and joint heir to a certain tract of land entered into an agreement with another brother, who was the administrator selling the land, that he would bid in the land at the administrator's sale, he and the administrator advancing money necessary to pay claims against the estate, and to buy in an individual interest which a third party had purchased from other heirs, and that they would agree on a price and sell one to the other, or they would sell the land to some stranger, and after each had taken out of the proceeds the money advanced by him the balance should be divided equally between the brother bidding, the administrator, and an insane brother, who was also a joint heir of the land. The land was bid in, and an administrator's deed made to the brother bidding, which recited a consideration of $ 1,600. The administrator made a sworn report to the court, showing that he had sold the land for $ 1,600. No money was actually paid the administrator. Four years after the sale, during all of which time the administrator remained in possession, the brother to whom the deed was made brought suit, claiming title by virtue of the deed. Held, that the agreement between the bidder and the administrator constituted the bidder a constructive trustee of the land, and that it was not such a trust as was required, by section 7267, Comp. Laws 1909, to be in writing.
2. EXECUTORS AND ADMINISTRATORS--Sales Under Order of Court--Purchase by Administrator--"Purchaser." The administrator did not, by entering into the agreement, become a "purchaser," within the inhibition of section 5346, Comp. Laws 1909.
3. ESTOPPEL -- Prejudice as Element. The administrator, as against the brother to whom the deed was made, was not estopped by his report of sale to show the real facts.
J. B. Dudley and Jas. L. Brown, for plaintiff in error.
Ben F. Williams and C. M. Keiger, for defendant in error.
¶1 This was an ejectment suit by Joseph T. Turner against Charles E. Turner in the district court of Cleveland county. Joseph T. Turner and Charles E. Turner are brothers. William Turner, their father, died intestate, seised of the land in controversy, and left six children his sole heirs. It seems that he was indebted; but the record does not show to what extent. Three of his children, John Turner, William A. Turner, and James F. Turner, sold their interest in the land to one H. Cowan. The defendant, Charles E. Turner, was appointed administrator of the estate. He obtained an order to sell the land in controversy, for the purpose of paying the debts of the estate, and advertised the land for sale. lie and the plaintiff had an understanding with one Dr. Nail that if the land did not bring beyond a certain price Nail should buy the land at the sale with money to be furnished by plaintiff and defendant, and that he would then deed the land back to them and another brother, Andrew J. Turner, who, it seems, is not of sound mind. Just a short time before the sale, the plaintiff suggested to the defendant that they did not know whether Nail was reliable, and that it would be better for plaintiff to buy the land and hold it in the same way. The defendant then requested Nail not to bid in the land. The land was actually bid in by the plaintiff, and the deed was made to him by the defendant as administrator. The deed recited a consideration of $ 1,600. No money was actually paid him. The plaintiff and defendant borrowed $ 500, and that, or a greater part of it, was used in buying the interest of H. Cowan in the land. The agreement, as testified by the defendant and found to be true by the trial court, was that the plaintiff, defendant, and the insane brother, Andrew J. Turner, were each to hold a one-third interest in the land, after deducting the amounts advanced by plaintiff and defendant, and the plaintiff and defendant were to agree upon a valuation and sell out one to the other, or they were to sell out to some third party, and take out the money they had each invested and divide the surplus, if any, equally among the three, the plaintiff, defendant, and Andrew J. Turner. The administrator made a report of sale of the land, under oath, showing that he had sold the land to Joseph T. Turner for the sum of $ 1,600. After the sale the defendant remained in possession of the land for several years. He had the deed recorded, and retained possession of the land. There was a judgment for defendant, establishing a trust, and the plaintiff appeals. The judgment expressly saves the rights of the plaintiff to have his equity in the land settled and adjusted by further proceedings. The contentions of plaintiff are: First. That the contract between plaintiff and defendant was not enforceable, for the reason that it was not in writing, and was invalid within the statute of frauds and statute of uses and trusts. Second. That it was invalid, because it was an attempt by the administrator to purchase the property of the estate, in violation of the statute. Third. That the defendant was estopped, by his recital in his deed and the proceedings in the probate case, from claiming any interest in the land. The first proposition is the difficult one. The provisions of the statute of frauds with reference to contracts to convey land are not applicable. The defendant does not allege there was a contract to convey lands. The allegations of the answer are that the land was conveyed to plaintiff in trust to reimburse himself and defendant for money they advanced, and to divide the amount the land was worth over what they had advanced, into three parts; each of them to receive one part and their insane brother, Andrew, to receive one part. Section 7367, Comp. Laws 1909, provides that The facts as shown create a trust by operation of law. The trust is of the class known as constructive trusts. An examination of the record shows that the two brothers wanted the land to bring what it was worth, and that they agreed, if it did not bring a certain price, they would have it bid in, and they would themselves advance the money necessary to pay off the claims against the estate. Three of the brothers had sold their interest, and the purchaser from them, Cowan, had to be repaid. The insane brother, Andrew, had an interest in the land, subject to the debts. The plaintiff proposed to buy it in, and to hold it in trust for all three, subject to his and the defendant's right to have the money they advanced repaid to them. It is very clear that if plaintiff prevails in this action an injustice will be done the other two brothers. The statute of frauds cannot be used to effectuate a fraud. Hughes, Datum Posts, 182, L. C. 341. In this case, if plaintiff is permitted to recover, he will gain an advantage from a statute that was intended to prevent fraud and perjury. Whenever a person conveys land to another under such circumstances as that the other cannot, in equity and good conscience, hold it, equity will consider him a constructive trustee for the persons rightfully entitled. Perry on Trusts, sec. 171. The plaintiff and defendant, together with Andrew Turner, were joint tenants or copartners in the land. The general rule is that a joint tenant cannot buy in an outstanding title and hold it adversely to his cotenants, but that he must hold it for their benefit, with the right to require them to contribute their proportion of whatever the outstanding title costs him. 38 Cyc. 40. In this case the defendant, as tenant in common, desiring to protect his own interest and the interest of his insane brother, entered into the agreement that was made with plaintiff. If the plaintiff had not entered into this agreement, defendant might have made some other arrangements that would have protected their interest. To allow plaintiff to hold the land would be to allow him to profit by his breach of contract, and deprive defendant of the interest he thought he was protecting, and which he might have protected in some other way, had plaintiff not made the agreement he did. No cases exactly in point have been found; but a number of cases in which the same principle is involved can be cited as sustaining the conclusion that the plaintiff in the case held the land purchased by him as constructive trustee. In the case of Chadwick v. Arnold, 34 Utah 48, 95 P. 527, a mortgagor entered into an agreement with a person, by which he was to buy the mortgaged premises, taking title in his own name, and upon promise of a certain sum he was to reconvey the property to mortgagor. It was held that a trust ex maleficio arose, enforceable, though the contract was not in writing, as required by the statute of frauds. In the course of the opinion, the court said:
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