Cowden v. Oyster

The opinion of the court was delivered, by Strong, J. Whether the land in controversy was held by Erancis Cowden in trust for his wife or not, must be determined from his acts and declarations at the time when the conveyance was made to him. If there was no trust then, none was created by anything that was said or done subsequently. There is, however, no evidence that on the 21st day of October 1820, when Andrew Kreitzer made the deed to Erancis Cowden, or at any time prior thereto, Cowden agreed to hold the land in trust for his wife. No written declaration to that effect was made, and no verbal acknowledgment of a trust is proved. It is true a single witness testifies that she “ often heard Cowden say it was his wife’s land, not his but she does not prove that he said so when the title was made to him; and, for aught that appears, these declarations were made after his creditors had obtained liens on the land, and even after it had been sold for the payment of his debts. Such evidence is utterly inadequate to prove a trust. The deed [373] having been taken in his own name, the legal presumption is that the use belonged to him, and though it was competent to show by parol evidence that the beneficial interest was in another than the grantee of the legal title, that evidence must be clear and explicit. It is not the legal conveyance or the transfer of it that creates the trust, but the declaration of it, except in the case of resulting trusts, or such as the law implies from the transaction. And hence the evidence that the grantee holds in trust should be as "certain and as satisfactory as that which is required to prove the transmission of a title. Parol trusts, in opposition to legal titles, are not favoured. Such being the undoubted rule in equity, it is manifest that loose declarations of the holder of a legal title that the property belongs to his wife or child, declarations that have no necessary reference to the mode of acquisition, cannot be/ permitted to overthrow the presumption arising from an absolute conveyance. If they can, legal titles are most unsafe. We do not, however, understand the plaintiff to contend that any declarations of Francis Oowden show him to have been a trustee for his wife, independent of the fact that the purchase-money of the land was a debt due from Andrew Kreitzer to the wife. The argument is that she elected to take, as land, a legacy given to her by her father out of the proceeds of land, and that the conveyance to her husband was therefore in trust for her; that the husband never made her chose in action his own by reducing it into possession, and that for this reason a trust resulted to her from the purchase with her legacy. This position is entirely untenable. By the will of her father, his lands were directed to be divided into two parts and valued. They were then devised to his two sons at the valuation if they accepted the devise, and only in case they did' not accept, was the land directed to be sold. The amount of the valuation, or the proceeds of sale in the event of non-acceptance, were directed to be divided among all his children, of whom the plaintiff was one. The lands were divided and appraised. They were accepted by the sons at the valuations, and deeds were made to them by the executor of the will. The sons were not executors. It was not therefore their duty to pay the legacies as such. But having taken the land at the valuation, they became debtors, and assumed to pay proportionate parts of the valuation bequeathed to their sisters. It is immaterial, however, whether the sum due by Andrew Kreitzer to his sister, Mrs. Oowden, be regarded as a legacy or a debt. Whether one or the other, she had no dominion over it. She could not release it or lawfully receive it, and certainly it was not in her power to agree to take land instead of money. The entire dominion over the debt or the legacy was in her husband. He only could elect to receive land instead of money. It is, then, a mistake to argue, as has been argued in this case, that the legal title to the wife’s [374] land was made to the husband. She had no ownership of the land, either legal or equitable, when Andrew Kreitzer made his deed to Cowden. To contend that she had, is to assume that her dominion over her chose in action continued, notwithstanding her coverture, which certainly was not the law, in this state, before 1848. Doubtless Francis Cowden might have refused or neglected to assert his marital rights over her chose, or he might have collected the debt or legacy with no intention to make it his own. He might have constituted himself a trustee for her, either of the money or of the land, if he chose to take it in lieu of money; but the evidence of this, if found anywhere, must be in what took place at the time when he asserted his dominion. If he then took the title to himself, his wife’s right was extinguished, and neither the chose nor its product was any longer hers. Nothing less than a subsequent gift or a grant could revest her with any right. Now, if, as has been assumed all through this case, and as is doubtless true, the consideration of the deed from Andrew Kreitzer to Francis Cowden was the sum due from Kreitzer to Mrs. Cowden, and if that conveyance discharged the debt or paid the legacy, the title of the' husband was substituted for that of the wife ; and such a substitution is a complete reduction into jmssession of a wife’s right in action. In no possible way could a husband more plainly manifest his determination to make his own a chose in action of his wife, than by taking a deed or conveyance of land in -satisfaction of it to himself. In Hannah v. Swarner, 3 W. & S. 223, this very case was put by Judge Rogers as an express determination to avoid any remaining right of a wife. It was said, indeed, in Johnson v. Johnson’s Administrator, 7 Casey 450, that “ it was not intended to deny that declarations made at the time of receiving the wife’s money or choses in action, or afterwards, but clearly evincive of the intent at the moment of reduction to possession, may not repel the presumption of personal acquisition by the husband and establish the relation of trustee for the wife.” Rut it Avas added that, in the language of Gibson, C. J., “they must be deliberate, positive, precise, clear, and consistent with each other,” and that “the disclaimer of conversion by the husband to his oAvn use of his wife’s money must be clearly proved, either by acts or declarations, at the time, or by subsequent admissions which leave no doubt of the intent at the time.” In this case there is not a shadow of any evidence of any act or declaration of Francis Cowden, at the time the deed was made to him, tending to show that his wife had any title to the land, nor of any subsequent declaration that he did not intend, by taking the deed in his own name, to acquire for himself ownership of the land. There was, therefore, no evidence of a trust Ayhich should have been submitted to the jury. [375] There is nothing in any of the eases cited by the plaintiff that sustains her. In Hannah v. Swarner there was an express agreement by the husband before the land was taken in lieu of the legacy that it should be the land of his wife. In Beal v. Stehley, 9 Harris 376, there was no conveyance to the husband. At most, there was an implied election that his wife should take land instead of a pecuniary legacy, but nothing was done to extinguish her right. Lynch v. Cox, 11 Harris 265, was an ordinary case of a resulting trust arising from the payment of the purchase-money by one, while the deed was made to another. It has no application to a question'between a husband and wife. Davis' v. Davis, 10 Wright 342, was a case where the husband had given a power of attorney to collect a legacy to his wife, and pay the proceeds to her sole and separate use. The attorney took land for the legacy in his own name. It was of course held the equitable title was in the wife. The husband had done nothing to assert his marital rights until after the ownership of the land had vested in the wife. We hold, therefore, the evidence entirely failed to show that Francis Cowden took a conveyance of the land in controversy in trust for his wife, and that the court was right in directing a verdict for the defendant. Of course the question whether the defendant was a purchaser for a valuable consideration, without notice of a trust, does not arise. The judgment is affirmed. Woodward, C. J., and Thompson, J., dissented.