Anthe v. Heide

SOMERVILLE, J. There is practically but one question in this case, and upon the solution of that turns the correctness or incorrectness of the conclusion reached by the chancellor, who dismissed the complainant’s bill. If the money paid for the lot in controversy was the money of Heide, then no trust in the land could result in favor of the complainants, by reason of any alleged parol promise by Heide to purchase the land, and hold it for the use of Mrs. Anthe, or to convey it to her on her request. Such an agreement would be void by virtue of our statute of frauds. White v. Farley, 81 Ala. 563; Patton v. Beecher, 62 Ala. 579; Code, 1886, § 1845. But if, on the contrary, any portion of the money paid to the Elyton Land Company, as the consideration for the purchase of the land, was the money of Mrs Anthe, as alleged in the bill, although the bond for title was taken by Heide in his own name, a resulting trust in the land would enure to the benefit of Mrs. Anthe, to the extent of the consideration advanced by her. And if Heide himself advanced any part of the consideration by the way of a loan to Mrs. Anthe, under an agreement, express or implied, he would hold the property upon a resulting trust in her favor, to the extent of her interest in such money consideration, which is alleged in the bill to be an undivided half interest. — Bates v. Kelly, 80 Ala. 142, and cases there cited. We have examined the testimony with great care, and are unable to resist the conclusion, that the chancellor erred in holding that the complainants were not entitled to the relief prayed for in the bill. We are clearly and satisfactorily [239] convinced, that the property in controversy was bought on joint account between Mrs. Anthe and the defendant Heide, and that she is, under the testimony, entitled to an equity in an undivided half interest in it. A portion of the consideration was paid for with her money — hers we mean so far as her husband and these defendants are concerned — and the other portion with the money of Heide. The last payment made by Heide, being anticipated by him without the consent or knowledge of the complainants, must in justice and good conscience be considered as a fraud on the rights of complainants, and an advance by way of implied loan to Mrs. Anthe, to the extent of the difference between what she had paid and one-half of the entire purchase-money, with interest. This conclusion seems to us to be corroborated by a decided preponderance of the testimony, including the written evidence introduced, the clear, deliberate and frequent admissions of the defendant Heide, and the testimony of many disinterested witnesses in the case. The testimony of the defendant Heide to the contrary, we think, is successfully impeached by strong contradictory evidence not reconcilable with his phase of the case. To our minds, the evidence establishing the trust in complainant’s favor is full, clear and convincing, and this is all that is required. — Carter v. Challen, 83 Ala. 135, and cases cited. The defendant Knaus can not claim to be protected as a bona fide purchaser by reason of his mortgage, so far as the equity of Mrs. Anthe is concerned, for two reasons: First, the mortgage debt is an antecedent, or pre-existing one; and, second, the complianants were in actual possession of the premises, claiming to own an undivided half interest in it, and this operated as constructive notice of their equity. * Mrs. Heide is a mere volunteer under the deed taken to her from the Elyton Land Company. ' She can be in no better condition than if the deed had been made to Heide, and he had conveyed to her by way of mere gift. The title of the complainants can not be affected by such a transfer, especially by one who is shown to be insolvent. A mere donee can never be protected as a bona fide purchaser for value. The decree of the chancellor must be reversed, and a decree will be rendered in this court, decreeing the complainants to be entitled to the relief prayed. The cause will be remanded, that a reference may be made to the register to state an account, with a view of ascertaining how much [240] the complainant, Mrs. Anthe, owes to the defendant Heide on the purchase-money of said land paid by him on her account.