Worobey v. Sibieth

• Decision Date: 15 December 1949
• Citation: 71 A.2d 80,136 Conn. 352
• Court: Connecticut Supreme Court
• Parties: WOROBEY v. SIBIETH et al. Supreme Court of Errors of Connecticut

Page 80

71 A.2d 80

136 Conn. 352

WOROBEY v. SIBIETH et al.

Supreme Court of Errors of Connecticut.

Dec. 15, 1949.

William L. Beers, New Haven, with whom were Benjamin Diamond, New York City, of the New York bar, and J. J. Henry Muller, III, New Haven, for the appellant (plaintiff).

Samuel H. Platcow, New Haven, with whom was Edward M. Rosenthal, Meriden, for the appellees (defendants).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

In this action the plaintiff sought to secure a reconveyance of property which she had conveyed to the defendants, claiming that they had agreed with her that they were to pay certain overdue taxes and that when the plaintiff was able to reimburse them for the money so spent and for any sums they might pay upon a mortgage upon the premises they would convey the property back to her. The trial court rendered judgment for the defendants and the plaintiff has appealed.

The determinative issue is whether the trial court erred in excluding a question asked of a witness called by the plaintiff. The trial court found that in 1937 the plaintiff did convey the land to the defendants and that in consideration for it they paid certain interest on the mortgage and the overdue taxes, but that they did not promise to reconvey it; and in its conclusions the court stated that the plaintiff had failed to sustain the material allegations of her complaint by a fair preponderance of the evidence. Because error is assigned in the finding that the defendants did not promise to reconvey the property and the plaintiff requests an addition to the finding in effect asserting that there was such an agreement as was alleged in the complaint, we have examined the evidence. The plaintiff offered evidence without objection which might have justified the court in finding that there was an oral agreement substantially as alleged between herself and the named defendant, to whom we shall hereinafter refer as the defendant, but he testified that there was no promise to reconvey, and that testimony, with other evidence, was a sufficient basis for the finding of the trial court that this was so. The court had to determine, by balancing conflicting testimony, whether the claimed agreement was made. It is out of this situation that the question presented to us on the appeal arises.

The plaintiff called a witness who testified that she was present at a conversation between the plaintiff and the defendant in 1944. She was asked what the conversation was; the defendants objected and the trial court sustained the objection. The plaintiff claimed the testimony on the ground that it would support her contention that the property was to be reconveyed to her when she reimbursed the defendant for the sums he had expended; the defendants' objection was that oral evidence was inadmissible to establish an express trust in real estate. It is obvious that, if the plaintiff would be entitled to relief upon the basis of the oral agreement she alleged, she had a right to put in evidence statements made by the defendant which would throw doubt on his claim that there was no such agreement. The ruling on the admission of the testimony, then, raises the question whether the plaintiff could secure a reconveyance of the property upon the ground she claimed.

Our law is settled that property absolutely conveyed cannot be shown to be subject to an express trust by reason of a parol agreement to that effect. Andrews v. New Britain National Bank, 113 Conn. 467, 473, 155 A. 838; Reynolds v. Reynolds, 121 Conn. 153, 160, 183 A. 394; Hanney v. Clark, 124 Conn. 140, 144, 198 A. 577. There are situations however, where equity, in order to work out justice between the parties, will itself raise a trust; Millard v. Green, 94 Conn. 597, 603, 110 A. 177, 9 A.L.R. 1610; and such trusts do not fall within the rule stated above. Ward v. Ward, 59 Conn. 188, 196, 22 A. 149. Within this category fall constructive trusts, the basis of which is fraud, actual or constructive. Maltbie v. Olds, 88 Conn. 633, 639, 92 A. 403; Monski v. Lukomske, 118 Conn. 635, 640, 173 A. 897; Van Auken v. Tyrrell, 130 Conn. 289, 292, 33 A.2d 339. It would serve no present purpose to attempt to catalogue the various situations which fall within the designation constructive fraud, even if that were possible. Our early cases are reviewed in Todd v. Munson, 53 Conn. 579, 589, 4 A. 99. Equity is much more prone to find such fraud in cases where property is bequeathed or devised to one upon his promise to deal with it in a certain way; Hanney v. Clark, supra, 124 Conn. at page 145, 198 A. at page 579; and that is illustrated by our cases of Dowd v. Tucker, 41 Conn. 197, 205, and Buckingham v. Clark, 61 Conn. 204, 209, 23 A. 1085. See McLaughlin v. Thomas, 86 Conn. 252, 258, 85 A. 370. Apart from such situations, we have said that the basis of such trusts may be found in 'fraud, misrepresentation, imposition, circumvention, artifice, or concealment, or abuse of confidential relations.' Verzier v. Convard, 75 Conn. 1, 4, 52 A. 255, 256; Reynolds v. Reynolds, supra, 121 Conn. at page 159, 183 A. at page 396. Situations falling within this statement where there was no actual fraud, imposition or the like are found in three cases which have been before us. In Nichols v. Nichols, 79 Conn. 644, 66 A. 161, the mother of several children by her will gave the life use of her real estate to her husband and at his death devised it to them subject to certain charges; after the death of the husband the children entered into a family settlement as to the property, the effect of which was to destroy the interest of one of them, the plaintiff in the action; he received no consideration for surrendering his interest; he was mentally infirm and did not understand the nature of the transaction; we sustained the trial court, 79 Conn. at page 656, 66 A. at page 165, in its decision that so much of the settlement as destroyed the interest of the plaintiff in the property could not be upheld, and we said: 'The relief asked for is equitable, and the effect of the judgment is to require the defendant to account as a trustee ex maleficio or trustee of a constructive trust, for the funds which she may properly be regarded as having received from [the plaintiff's] interest in the properties in question.'

In Fisk's Appeal, 81 Conn. 433, at page 438, 71 A. 559, at page 561, a wife was induced by her husband, Eugene Fisk, to make an absolute conveyance of certain real estate to him upon his promise to hold it in trust for her two children, of whom the elder was then twelve years old; both husband and wife were residents of Illinois and the property was located there; we held that the law of Illinois would control, and, after pointing out that under that law an express trust in real estate could not be proved by parol, we said: 'The provisions which have been quoted of the Illinois statute of frauds have been repeatedly the subject of judicial construction by the courts of that state, and the established doctrine is that if one occupying a fiduciary relation toward another who is in failing health and nearing his end takes advantage of these circumstances to obtain from the latter a conveyance of real estate, on an oral promise to hold the title for the benefit of a third person, and afterward repudiates the obligation thus assumed, he is notwithstanding the statute chargeable in equity on parol proof of such facts with constructive fraud, from which the law raises a trust ex maleficio Stahl v. Stahl, 214 Ill. 131, 73 N.E. 319, 68 L.R.A. 617, 105 Am.St.Rep. 101 . Mr. Fisk occupied such a relation toward his wife, and the transaction...