Whitten v. Written et als.
| Citation | 70 W.Va. 422 |
| Parties | Whitten v. Written et als. |
| Decision Date | 27 February 1912 |
| Court | Supreme Court of West Virginia |
Tkusts Resulting Trusts Presumptions.
Money of a wife invested in land in the husband's name is presumptively a gift, and, in the absence of facts and circumstances rebutting the presumption, such as violation of a prior or contemporaneous agreement to take the title in the wife's name, ignorance of its having been taken in the husband's name, subsequent expenditure of the wife's money in improvements thereon, an effort on her part to obtain the title after discovery of its condition, control of the property as her own against the husband, or the like, there is no resulting trust in her favor.
(Beannon, President, absent.)
Appeal from Circuit Court, Monroe County. Bill in equity by L. A. Whitten against Thomas G. Whitten and others. From a decree for defendants, alaintiff appeals.
Reversed and Remanded.
J. II. Crosier and R. L. Clark, for appellant.
Rowan & Meadows, for appellees Stull.
poffenbargeh, judge '.
Sufficiency of the evidence to establish a resulting trust in favor of the devisees of a deceased widow against the heirs of the deceased husband is challenged by this appeal from a decree in a partition suit in favor of the former.
At the time of his death, in 1890, John G. Whitten held the legal title to a tract of land, containing 57 acres, on which he resided, and a small adjacent tract. In 1882, a commissioner of the circuit court of Monroe county conveyed to him and Thos. G. Whitten, his brother, as assignees of 14. M. Lockridge, a purchaser at a judicial sale, a tract of 159 acres and 32 poles, out of which the latter, under a voluntary partition, conveyed to the former the 57 acre tract. In 1886, the other small tract was conveyed to John G. He died in 1890, leaving his wife, Sally A., surviving, who resided on the 57 acre tract until her death, in 1907, leaving a will, bequeathing and devising all of her property, "both personal and real" to Geo. Stull and Cora M. Stull, his wife, subject to the payment of her debts. This suit was brought by a collateral heir of John G. Whitten, his brother, L. A. Whitten, against numerous other heirs for partition of the land, and the Stulls were made parties to it on their petition, claiming title to all of it by virtue of the will, upon the theory of equitable title in the testatrix by reason of alleged payment of all the purchase money out of money belonging to her, and the court upheld and enforced their claim as to the 57 acres, by the decree appealed from.
Three witnesses swear the deceased husband had admitted navment for the land with his wife's monev and her title to it, and his duty to convey it to her. Two of them say $250.00 of the purchase money came from her father's estate, one of whom further says he was present when Shannon Baker, her brother, paid it either to John G. Whitten or Lockridge. Another says he married into the family and knows the purchase money came from her father's estate, but details no dates, amounts or circumstances. Two of them mention an additional sum of $35.00 put in on the original transaction with the $250.00, which she had saved from the proceeds of sales of farm products. By way of rebuttal, two witnesses say John Baker, the wife's father, died only ten years before the date of their testimony, fifteen years or more after the date of the first purchase. Four witnesses testify to the wife's admissions of title in the husband's heirs and her inability to sell or dispose of the land or obtain more than the use of it during her life, but not to any denial of payment of purchase money out of her funds, or admission of payment otherwise. As to the total amount of purchase money, there is no evidence, hut the petition, treated as a cross-bill, contains an undenied allegation that it was $400.00, which, under the rule, is taken as true.
Failing to observe the effect of the relation of husband and wife upon the transaction, relied upon as having vested equitable title in Mrs. Written, the decree seems to treat it as one between strangers, in which proof of payment of money alone establishes a resulting trust in favor of him who paid the money, the legal title having been conveyed to another. The marital relation of the parties introduces an exception, not always mentioned, however, in dealing with cases in which it is a factor. The rule as stated in Skaggs v. Mann, 46 W. Va. 209, is somewhat broader than the authority cited for it, (Berry v. Wideman, 40 W. Va. 36), which, though placing the burden upon the husband to prove the money invested was a gift, says the fact is "prima facie established by proof of her knowledge and consent." This qualification is unnoticed in the quotation of the rule in Skaggs v. Mann. Cresap v. Cresap, 54 W. Va. 581, observe it. Deck v. Tabler, 41 W. Va. 332, McOlintock v. Loiseau, 30 W. Va. 865, and Lockhard v. B&ckley, 10 W. Va. 87, go further, declaring a presumption of gift without proof of knowledge and consent on the part of the wife whose money has been so invested in the name of the husband which must be rebutted by proof of her ignorance of the fact or her objection to the form of the conveyance or some other fact inconsistent with the presumption. This subject is more thoroughly considered in McGinn/is v. Curry, 13 W. Va. 29, than in any other of our decisions. There the deed was taken in the husband's name with the approbation of the wife, but Judge Green clearly expresses the opinion that the result ought to have been the same in the absence of proof of that fact. In other words, he thought the burden was upon the wife to negative the presumption of a gift. We read: ...
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