Wallace v. Dunton

• Citation: 139 N.W. 345,30 S.D. 598
• Parties: WALLACE v. DUNTON et al.
• Decision Date: 06 January 1913
• Court: Supreme Court of South Dakota

139 N.W. 345

30 S.D. 598

WALLACE v. DUNTON et al.

Supreme Court of South Dakota

January 6, 1913

Appeal from Circuit Court, Day County; J. H. Bottum, Judge.

Suit by Diana E. Wallace against George C. Dunton, as administrator etc., of Edward C. Wallace, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

H. H Potter, of Webster, and Campbell & Walton, of Aberdeen, for appellant.

Anderson & Waddel, of Webster, for respondents.

SMITH J.

Appeal from the circuit court of Day county. On May 17, 1887 Richard H. Smith and wife conveyed to Edward C. Wallace a quarter section of land in Day county, less a tract of about 10 acres previously conveyed for cemetery purposes, and less another tract of about 22 acres, previously transferred to the Day County Agricultural Association. The sale and purchase on the part of Edward C. Wallace was transacted by Samuel C. Wallace, his brother. Samuel C. Wallace paid over the purchase price, and from the time of the delivery of the deed to the time of his death, in 1902, rented the land to tenants, collected the rents, and generally controlled the disposition and handling of the land. Edward C. Wallace, the purchaser, was never in South Dakota. The land was assessed in the name of Samuel C. Wallace and his estate and widow from 1888 to 1909, inclusive, and all taxes were paid by Samuel C. Wallace and Diana E. Wallace, his widow, or by some one for them. On January 15, 1898, the 22 acres of the quarter section formerly deeded by Smith to the Day County Agricultural Association was purchased by and deeded to Samuel C. Wallace. On May 10, 1900, Samuel C. Wallace made his last will and testament, devising all his property to his wife, Diana E. Wallace, the plaintiff, and naming her as sole executrix. The will does not specifically describe the land in controversy, or any other land or property devised, but is a general devise of "all my real and personal property of every name and nature of which I may die possessed." The will was duly probated, notice thereof being mailed on July 10, 1902, to the heirs named in the petition; Lena Wallace Cunningham, daughter of Edward C. Wallace, being named as one of the heirs. Probate proceedings were conducted to a final decree of distribution, in which the land in controversy was assigned to the plaintiff Diana E. Wallace on September 24, 1903, and the decree recorded in the register of deeds office of Day county on September 27, 1910. Edward C. Wallace, the grantee named in the deed, died in 1897, 10 years after the recording of the deed. Lena Wallace Cunningham on April 27, 1910, filed in the county court of Day county a petition for administration of the estate of her father, Edward C. Wallace, alleging that the decedent was owner of the land, and the defendant George C. Dunton was thereupon appointed administrator. Thereafter the plaintiff Diana E. Wallace brought this action against Dunton as administrator and Lena Wallace Cunningham and others to determine adverse claim to the land. Lena Wallace Cunningham answered, claiming title to the land in herself. The trial court found: "(1) That consideration for the deed given by Richard H. Smith and his wife to Edward C. Wallace, dated on the 17th day of May, 1887, and on said date duly recorded in the office of the register of deeds of Day county, *** transferring and conveying the property in controversy in the above-entitled cause, was the money and property of the said Edward C. Wallace. (2) That the land in controversy has not prior to the commencement of this action been protected by a substantial inclosure. (3) That the land in controversy has not prior to the commencement of this action, and for a period of at least 20 years, been usually cultivated or improved, possessed, or occupied by said Samuel C. Wallace or Diana E. Wallace, the above-named plaintiff, or either of them. (4) That the occupancy of said premises by the said Samuel C. Wallace between the years 1887 and 1902, both inclusive, if any, was not adverse, or under a claim or right of title thereto, but that the same was had subject to and in subordination and recognition of the title of the said Edward C. Wallace."

The court further finds that the defendant Lena Wallace Cunningham is the sole heir at law of Edward C. Wallace, deceased, and as such became and is the owner in fee of the land in controversy, and is entitled to a judgment and decree quieting her title against the plaintiff. Appellant assigns insufficiency of the evidence to sustain the findings of fact and conclusions of law, and specifies fully and sufficiently the particulars in which the evidence is alleged to be insufficient. The assignment which is vital to appellant on this appeal is that the evidence is insufficient to sustain the finding of the trial court that the consideration for the deed from Richard A. Smith and wife to Edward C. Wallace was the money and property of Edward C. Wallace. It is appellant's contention that this finding is contrary to the preponderance of the evidence, and that the trial court should have found that such consideration was paid by and was the property of Samuel C. Wallace.

Appellant cites and relies upon the provisions of section 303 of the Civil Code, which reads as follows: "When a transfer of real property is made to one person and the consideration therefor 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 is contended that Edward C. Wallace is holder of the legal title in trust for Samuel C. Wallace.

While this action is brought under the Code to determine adverse claims to real property, it is apparent that the issue can only be determined in plaintiff's favor by a decree adjudging that Edward C. Wallace holds such title as a resulting trust because payment of the purchase price of the land was made from the money of Samuel C. Wallace.

It is the settled rule that the burden of establishing such a trust as against the holder of the legal title is on the party who asserts the trust. Keuper v. Mette, 239 Ill. 586, 88 N.E. 218; Cunningham v. Cunningham, 125 Iowa, 681 101 N.W. 470; Lehman v. Lewis, 62 Ala. 129; Ecton v. Moore, 4 Ky. Law Rep. 307; Proctor v. Rand, 94 Me. 313, 47 A. 537; Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N.W. 982; ...