Neppach v. Norval

MoBRIDE, O. J. The principles governing a resulting trust are clearly laid down and defined, so far as this state is concerned, in Parker v. Newitt, 18 Or. 274, 276 (23 Pac. 246), in which Mr. Justice Lord said: — 597 — “The principle is well settled in equity that where one purchases an estate, and pays for it, and takes the title in the name of another, or where one purchases land with the money of another, and takes the title to himself, there arises, by operation of law, a resulting trust in favor of him whose money paid for it. 1 Perry on Trusts, § 126; Hill on Trustees, 146; Foot v. Colvin, 3 Johns. (N. Y.) 216; Sunderland v. Sunderland, 19 Iowa, 327. This is founded upon the presumption that the party paying for the estate intended it for his own benefit. But this presumption, does not arise in some excepted cases, where, by rea^ son of the relation of the parties, the payment of the consideration may be presumed to be a gift to the nominal purchaser named in the deed. 1 Perry on Trusts, § 143 et seq. Where he who pays the consideration takes the title in the name of one for whom he is bound legally and morally to provide, the presumption is that it was intended as an advancement, and not a resulting trust; or, as it is sometimes said, that this circumstance rebuts the presumption of a resulting trust, and creates a presumption that it was done as an advancement. Where land has been purchased by a husband, and the title taken by him in the name of his wife, the presumption is that it was intended as an advancement or settlement for the wife and not as a trust in favor of the husband. 2 Story Eq. Jr. 1201 et seq. Or, if a husband permits his wife to use his money to make the purchase in her own name, no trust results to the husband; but the presumption is that it was intended as an advancement, and operates the same as if he had made the purchase, and caused the title to be made to her. Sunderland v. Sunderland, supra; Douglas v. Brice, 4 Rich. Eq. (S. C.) 322. But this presumption may be overcome by evidence. ‘Whether a purchase in the name of wife or child is an advancement or not is a question of pure intention, though presumed íl the first instance to be a provision and settlement.’ 1 Perry on Trusts, § 147; Hill on Trustees, 97. Although a resulting trust may be established by parol — 598 — evidence, yet to have that effect it must be clear and positive. ‘To make snch an effort successful, the law for the safety of titles, requires that the proof shall be of the most convincing and satisfactory kind. Nothing short of certain, definite and convincing proof will justify the court in divesting one man of his titlto lands, evidenced by a regular deed, and putting it in another.’ Midmer v. Midmer, 26 N. J. Eq. 304; Boyd v. McLean, 1 Johns. Ch. 590; Lench v. Lench, 10 Vesey, 517. Moreover, the onus of establishing a resulting trust rests upon him who seeks its enforcement, and, before a court of equity will be warranted in making a decree therefor, the evidence must be clear, definite and free from doubt. Hence, to entitle the plaintiff to conveyances of the premises in controversy to himself, he must fairly establish, if he paid for the property and took title in the name of his wife, that at that time it was mutually understood and was the intention that she should hold the title to the premises, not in her own right, but" in trust for him. ’ ’ This has been held ever since to be a correct exposition of law, except as to some remarks of the court in regard to the modicum of evidence required to establish such a resulting trust. In Coe v. Coe, 75 Or. 145, 158 (145 Pac. 674), after quoting a portion of Mr. Justice Lord’s opinion, it is said: “In the language thus quoted, what is said about the evidence necessary to establish a resulting trust being ‘free from doubt’ is a degree of proof not required in civil cases.” So, we take it, that the true rule is, to establish a resulting trust in cases of this kind, there must be clear and satisfactory testimony indicating an intention on the part of the purchaser that the nominal grantee shall hold the property in trust and a like — 599 — intention on the part of the grantee to so hold, and that this should be established, not by mere conjectural testimony, but by such as is clear and satisfactory and not necessarily such as to leave the question “free from any reasonable doubt” as intimated by the trial court in its opinion on this case. It, therefore, remains for us to consider the testimony in this case, first, as to who paid the consideration. As before remarked, the parties were married in 1888, and there is some evidence tending to show that at that time the plaintiff was a thrifty and prosperous business man, but no evidence indicating that the deceased was at the time of marriage possessed of any appreciable amount of property or money. The testimony of the plaintiff, who was a man of seventy-three years of age, is that he bought the property, paying for it with his own money, in connection with a friend of his, Cord Sengstake, the original purchase comprising a lot or block, or part of a block 100x100 feet, the money being actually paid by plaintiff and the deed taken in the name of Kate M. Neppach, plaintiff’s wife. The intention was that Sengstake and Neppach were to build on the property, and in the course of the division Neppach chose the corner one-half of the property 50x100 feet at $5,500 and Sengstake took the inside portion of the property paying $4,500 for it, and the deed was executed by Neppach and his wife to Mrs. Sengstake for that part of the property. Plaintiff then proceeded to build a house, furnishing and paying ri his money therefor, which was the mutual home of plaintiff and the deceased Mrs. Neppach until her death in April, 1924. Neppach testified, positively, that he paid the whole consideration out of his own funds and it was not disputed, but thoroughly established, that he has since — 600 — paid all the taxes upon the property, and that he built the house on the property paying for it out of his own funds, so, there is no contention on the part of anybody that Mrs. Neppach ever paid anything for the property excepting the original purchase price, which amounted to $5,500 net. Plaintiff testified that all the money so paid was his money and that his wife never paid a dollar on the purchase price. His testimony is corroborated in that respect, by the testimony of Mrs. Nellie Shipherd, an intimate friend of Mrs. Neppach, who testified that Mrs. Neppach told her that the property belonged to Mr. Neppach. Another disinterested witness, Mr. R. Thomas, testified to similar declarations on the part of Mrs. Neppach. Evidence of these declarations coming from an entirely disinterested source is entitled to all the credit that such declarations are ever entitled to, and go far to confirm the statement of the plaintiff. On the other hand, the only witness who professes to have any knowledge of the facts from an original source is the executrix of the will, herself an interested party, who testified to declarations of Mrs. Neppach that she had put $5,500 in the property. She says this was frequently repeated, but it is not shown that at the time of this purchase Mrs. Neppach had any such amount of money, or that it is probable that she should have had it. Her father was a merchant and banker in fairly good circumstances, probably worth $60,000, and was quite liberal with his children, four in number, for a man of his means. There is no source shown from which Mrs. Neppach could have had $5,500 at the time this purchase • was made in 1908, except that she had accepted occasional presents from her father. It does not appear that she received anything of material value — 601 — from her father’s estate, he having- died in 1904, leaving- his property exclusively to his wife, who continued to be the owner of it until 1914, when she divided it amongst the children, Mrs. Neppach receiving about $3;000, to which trifling- sums seem to have been added from time to time from the rents of some real property. There is no sufficient testimony to show that Mrs. Neppach had the means at any time to have made this purchase with her own money. So, taking all the evidence together, there seems to be little doubt as to plaintiff’s testimony, that he paid for the place as well as the improvements thereon, being a correct statement. This coupled with the evidence of Mrs. Shipherd and Mr. Thomas would seem to establish the fact of the purchase of the property and the understanding of the plaintiff and his wife in regard to it almost beyond a reasonable doubt if such an amount of evidence is required. It was a natural arrangement under the circumstances. The plaintiff was in very prosperous circumstances; had just a short time before become possessed of $50,000 in a single lump and had the means to buy the property and pay for it. He was not in good health and was very much oppressed by a multitude of his business cares, and it would seem to have been the proper and natural thing for him to have taken the property in the name of his wife with the understanding, which he claims to have had, and which, if we accept the disinterested testimony of Mrs. Shipherd and Mr. Thomas, was actually agreed to. Taking these circumstances as fully established here, they constitute all the elements of a resulting trust,—the payment of the money by the plaintiff, the agreement between him and his wife that the property should be taken in his wife’s name to be held in trust — 602 — for him and to maintain all the property for him on that agreement, and the building of extensive improvements upon it, all of which are sufficient, if established, to meet every requirement of the decisions of our court. It is true that the prima facie presumption, where a man buys property and takes title in the name of his wife, is that such a purchase is intended as an advancement and the burden of proof is upon him to overcome that presumption by satisfactory evidence that such was not the intention of the parties. We think that presumption has been overcome in this case. The learned judge in the court below placed some emphasis upon the view that a resulting trust of this character must be established beyond a reasonable doubt, but as said in Coe v. Coe, supra, such is not the rule in this state. Nor do we attach controlling importance to the fact that the deceased devised the fee in the property to Miss Norval. It may have appeared to Mrs. Neppach that in view of her husband’s advanced age, the substance of the understanding between herself and her husband would be kept by leaving the life estate in the property to him with reversion to her niece and this view, while it may have satisfied her conscience morally, is not sufficient to satisfy the demands of the law. There is in fact in the terms of the will itself some recognition of the rights of her husband. The will does not in terms recite that she is attempting to devise “my property,’’but“ourhome,’’indicating some indistinct recognition of her husband’s rights therein and an attempt to recognize them and at the same time to limit them in favor of a relative in obedience to the natural instinct, which has crystallized in the saying that “blood is thicker than water.” It would be a — 603 — great wrong and a legal fraud to hold that this property, bought with plaintiff’s money and improved and maintained by him for many years, should be diverted to the use of a stranger, leaving, him in his declining years to a mere occupancy of what he has bought and paid for. The decree of the lower court is reversed and a decree will be entered in favor of plaintiff. Reversed and Decree Entered. For the motion, Mr. James P. Stapleton. Contra, Mr. Guy C. E. Corliss and Mr. Thomas Mannix. Bean, Brown and Belt, JJ., concur.