Windham v. Windham, 38855

• Decision Date: 26 October 1953
• Docket Number: No. 38855,38855
• Citation: 67 So.2d 467,218 Miss. 547
• Parties: WINDHAM v. WINDHAM.
• Court: Mississippi Supreme Court

Page 467

67 So.2d 467

218 Miss. 547

WINDHAM v. WINDHAM.

No. 38855.

Supreme Court of Mississippi.

Oct. 26, 1953.

E. L. Dent, John K. Keys, Collins, for appellant.

Wingo & Finch, Hattiesburg, for appellee.

ROBERDS, Presiding Justice.

Mrs. Windham, the appellee, filed this bill praying for (1) divorce from appellant, (2) custody of their two minor children, (3) alimony for herself and (4) support for the two children, (5) a half interest in the real and personal property of appellant, and solicitor's fees.

Appellant, by answer, took issue on all of the asserted claims, and, by cross-bill, asked that he be granted a divorce from appellee.

The chancellor granted a divorce to the wife and awarded her the custody of the two minor children; decreed her the use of the homestead as long as she should remain unmarried and purported to divest out of the husband and invest in the wife a half interest in 120 acres of land, legal title to which was in the husband, and to divest out of the wife and invest in the husband a half interest in 37 acres of land, title to which was in the wife. He awarded no alimony to the wife nor support to the minor children and did not allow the wife a fee for her solicitor. From this decree the husband appeals.

He complains only of that part of the degree undertaking to divest out of him and invest in the wife a half interest in his lands. He says, first, the testimony is too vague and indefinite as to the services rendered by the wife in respect to the land to afford any foundation for determining the value of such services, and, second, that a court of equity has no power, simply by decree or fiat, to lift out of one person his title to real property and invest that title in another.

As bearing upon the first question, it is shown that when the parties hereto married in 1928 appellant then owned two tracts of land, constituting approximately 120 acres, on one of which tracts was located a house which was used by them as a residence after their marriage. This house was repaired and enlarged after the marriage. Subsequent to the marriage appellant acquired and conveyed to appellee a tract of 37 acres of land. The decree undertook to divest out of appellant a half interest in the 120 acres and invest that half interest in appellee. Likewise it purported to divest out of the appellee a half interest in the 37 acres and invest that half interest in appellant. Appellant also acquired, after the marriage, a leasehold upon 80 acres of sixteenth section school lands, this lease to expire about five years after the trial of the case. He also owned certain farming tools, cattle and other personal property used about the operation of a farm. The chancellor did not disturb title to the leasehold nor to the personal property, and, there being no cross-appeal by Mrs. Windham, the correctness of his action, or non-action, in that respect is not before us.

Mrs. Windham detailed her services, as a basis of her claim for an interest in the 120 acres of land, in these words:

'Q. At the time that you married your husband in 1928, what, at that time, did you own by way of real property? A. I didn't own any.

'Q. What did he own at that time? A. He had a deed to both places of his but neither of the places wasn't paid for.

'Q. By both places--what are you speaking of? A. The eighty acres south of the Lone Star Highway and---- 'Q. Eighty acres? A. Yes, sir.

'Q. And what was the other place? A. The forty acres where our home is now. That is the land he owned.

'Q. Was the home on the land when you married him? A. No, sir.

'Q. There was no house there? A. It was a three-room tenant house without any ceiling in it.

'Q. Was it remodeled into your home? A. Yes, sir; after we married.

'Q. Is that all he owned? A. Yes, sir.

'Q. How much, if you know, was owed on that when you married? A. This place where we are living--the home place--it was approximately $1200.00 in the Federal Land Bank against this place that he had borrowed from them to pay for the place. He owed--well, he had paid $266.00 on the eighty-acre place prior to our marriage. After we married, there were some heirs connected with this land and he was to pay them later for their share of the land. That was after we married. We came to Collins and got Mr. Dent to fix the papers and borrowed the money from the Federal Land Bank.

'Q. How much did you borrow on the eighty-acre place? A. About $500.00. The place was worth, I think, around $900.00 and he had paid $266.00.

'Q. And you borrowed the balance? A. Yes, sir.

'Q. When was that paid back--that and the other $1200.00? A. It was paid by the year to the Federal Land Bank.

'Q. Where did the money come from that you used to pay it back? A. Off our farm.

'Q. At the time you married, was this land in cultivation? A. Part of it was. After we married, he and I and another fellow cleared the land that wasn't cleared.

'Q. Do you mean that you actually worked in the field? A. I did. I helped clear the land and I dug ditches.

'Q. You dug ditches? A. I positively did. I certainly did.

'Q. After that did you accumulate any more land? A. Ten acres.

'Q. Where did that come from? A. He bought that from Mr. Mounger.

'Q. From Mr. Mounger? A. Yes, sir.

'Q. Did you help pay for it? A. Yes, sir.

'Q. I believe it is alleged that he has an interest in eighty acres of sixteenth section land? A. That is right.

'Q. Was that acquired after you married? A. Yes, sir.

'Q. What is that eighty acres of land used for, Mrs. Windham? A. Farming. He rents that on a half basis.

'Q. He rents it on halves? A. Yes, sir.

'Q. Have you got any of the proceeds from that eighty acres? A. Positively no.

'Q. What is the rental? A. I don't know.

'Q. Do you know how much he made off it last year? A. Yes, sir.

'Q. What? A. He made ten bales of cotton.

'Q. Did you get your portion of that? A. No, sir.

'Q. Was there a crop made on the other lands, Mrs. Windham, last year and the year before? A. The whole place. He cultivated the whole place, but the eighty acres was in his son's charge.

'Q. Was it cultivated? A. Yes, sir.

'Q. The forty that your home is on--did you receive any portion of that crop? A. Positively no.

'Q. What crop was made on that? A. Cotton and corn.

'Q. And you got none of it? A. No, sir.

'Q. You own forty acres, I believe, do you? A. Yes, sir.'

She also said the husband had a small store and she worked part-time at that store.

These general activities over a period of twenty-eight years afford no clear basis for determining, with certainty and accuracy, their money value, assuming, but not adjudicating, a wife may create an indebtedness against the husband by such activities under the stated circumstances. She does not claim there was any understanding or agreement she would be paid, and we do not decide whether such an agreement, if had, would have been void under Section 454, Miss.Code 1942, restricting contracts between husband and wife.

Nor could the wife, under the circumstances here, become the beneficiary of a resulting trust, in the lands of the husband, as contended by Mrs. Windham. Mr. Windham owned the lands at the time of the marriage. The wife does not claim she paid any of the purchase price, or that she did any act or performed any services before, at or about the time of the purchase of, or acquisition of the title to the lands, creating for her benefit a resulting trust therein. 'A resulting trust arises, if at all, in the same transaction in which the legal title passes, at the time that legal title passes, on consideration advanced before or at that time, and not from matters thereafter occurring or on consideration thereafter advanced unless ocurring or advanced immediately thereafter so as to be in fact a part of the same transaction. The fundamental reason for the rule is that the resulting trust is one implied by law from the circumstances of consideration at the time of the transaction', although the trust is not affected by the failure of the person purchasing the land to obtain a valid deed or title thereto at the date of the transaction, but the trust attaches when the title is obtained subsequently. 54 Am.Jur., p. 159, Sec. 204; Moore v. Moore, 74 Miss. 59, 19 So. 953; Bush v. Bush, 134 Miss. 523, 99 So. 151. In the Moore case Judge Whitfield, speaking for the Court, quoted from the old case of Rogers v. Murray, 3 Paige, N.Y., 397, where it is said: 'After the legal title has once passed to the grantee by the deed, it is impossible to raise a resulting trust, so as to divest the legal estate, by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase money.' [74 Miss. 59, 19 So. 954.] To avoid confusion the case points out that in executory contracts of purchase the title does not pass until the deed is executed. Since appellant had title to the lands before the parties hereto married and the contributions in labor by Mrs. Windham to making improvements and repaying borrowed money on the lands were made thereafter no resulting trust arose in her favor in the lands.

On the second question, the decree undertakes to adjudicate that '* * * Mrs. Annie Windham is entitled to 50% of the property (the land) now held in both her name and that of her husband, Ben W. Windham', and 'she is hereby vested with a 50% interest * * *' to the lands of her husband (except the leasehold) and that to which she has title. Appellant says the chancery court has no power to divest and invest title in that manner; that there must be some vehicle for such transmission of title--such for instance, as appointment of a commissioner and sale by him in proper cases, or execution of a deed by the owner pursuant to direction of the court, under Section 1376, Code 1942, etc. There is some confusion in the late cases from this Court as to the power of chancery, merely by judicial fiat, to lift title out of one and...