Wallace v. Dunton

SMITH, J. Appeal from the circuit court of Day county. On May 17, 1887, Richard PI. Smith and wife conveyed to Edward C- Wallace a quarter section of land in Day county, less a tract of about 10 acres previously conveyed for cemetery purposes, and less another tract of about 22 acres-, previously transferred to the — 611 — Day County Agricultural Association. The sale and purchase on the part of Edward C. Wallace was transacted by Samuel C. Wallace, his brother. Samuel C. Wallace paid over the purchase price, and from the time of the delivery of the deed to the time of his death, in 1902, rented the land to tenants, collected the rents, and generally controlled the disposition and handling of the land. Edward C. Wallace, the purchaser, was never in South Dakota. The land was assessed in the name of Samuel C. Wallace and his estate and widow from 1888 to 1909, inclusive, and all taxes were paid by Samuel C. Wallace and Diana E. Wallace, his widow, or by some one for them. On January 15, 1898, the 22 acres of the quarter section formerly deeded by Smith to the Day County Agricultural Association was purchased by and deeded to Samuel C. Wallace. On May 10, 1900, Samuel C. Wallace made his last will and testament, devising all his property to his wife, Diana E.' Wallace, the plaintiff, and naming her as sole executrix. The will does not specifically describe the land in controversy, or any other land or property devised, but is a general devise of “all my real and personal property of every name and nature of which I may die possessed.” The will was duly probated, notice thereof being mailed on July xo, 1902, to the heirs named in the petition; Eena Wallace Cunningham, daughter of Edward C. Wallace, being named as one of the heirs. Probate proceedings were conducted to a final decree of distribution, in which the land in controversy was assigned -to the plaintiff Diana E. Wallace on September 24, 1903, and the decree recorded in the register of deeds office of Day county on September 27; 1910. Edward C. Wallace, the grantee named in the deed, died in 1897, 10 years after the recording of the deed. Eena Wallace Cunningham- on April 27, 1910, filed in -the county court of Day county a petition for administration of the estate of her father, Edward C. Wallace, alleging -that the decedent was owner of the land, and the defendant George C. Dunton wa-s thereupon appointed administrator. Thereafter the plaintiff Diana E. Wallace brought this action against Dunton as administrator -and Eena Wallace Cunningham and others to determine adverse claim -to the land. Eena Wallace 'Cunningham answered, claiming title to the land in herself. The trial court found: “(1)' That consideration for the deed' given by Richard H. Smith and his wife, to Edward C. Wallace, dated — 612 — on the 17th day of May, 1887, and on said date duly recorded in ’■the office of the register of deeds, of Day county, * * * transferring and conveying the property in -controversy in .the áfóove-entitled cause, was the money and property of the said Edward C. Wallace. (2) That -the land in controversy has not prior to the commencement of this action been protected by a substantial inclosure. (3) That the land in controversy has not prior to the commencement of this action, and for a period of at least 20 years, been usually cultivated or improved, possessed, or occupied by-said Samuel C. Wallace or Diana E. Wallace, the above-named plaintiff, or either of them. (4) That the occupancy of said premises by the said Samuel C. Wallace between the years 1887 and 1902, both inclusive, if any, was not adverse, or under a claim or right of title thereto, 'but that the same was had subject to and in subordination and recognition of the title of the said Edward C. Wallace.” The court further finds that the defendant Eena Wallace Cunningham is the sole heir at law of Edward C. Wallace, deceased, and as such became and is the owner in fee of the land in controversy, and is entitled to a judgment and decree quieting her title against the plaintiff. Appellant assigns .insufficiency of the evidence to sustain the findings of fact- and conclusions of law, and specifies fully and sufficiently the particulars in which the evidence is alleged to be insufficient. The assignment which is vital to appellant on this appeal is that -the evidence is insufficient to sustain the finding of -the trial court that the consideration for the deed from Richard A. Smith and wife to Edward C. Wallace was the money and property of Edward C. Wallace. It is appellant’s contention that this finding is contrary to the preponderance of the evidence, and that the trial court should have found that such consideration was paid by and was the property of Samuel C. Wallace. Appellant cites and relies upon -the provisions of section 303 of the Civil-Code, which reads as follows: “When a transfer of real property is made to one person and -the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.” It is contended that Edward C. Wallace is holder of -the legal title in trust for Samuel C. Wallace. • — 613 — While this action is brought under the Code to determine adverse claims to real property, it is apparent that the issue can only be determined in plaintiff’s favor 'by a decree adjudging that Edward C. Wallace holds such title as a resulting trust because payment of the purchase price óf the land was made from the money of Samuel C. Wallace. [1] It is the settled rule that the burden of establishing such a trust as against the holder of the legal title is on the party who asserts the trust. Keuper v. Mette, 239 Ill. 386, 88 N. E. 218; Cunningham v. Cunningham, 125 Iowa; 681, 101 N. W. 470; Lehman v. Lewis, 62 Ala. 129; Ecton v. Moore, 4 Ky. Law Rep. 307; Proctor v. Rand, 94 Me. 313, 47 Atl. 537; Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982; Berla v. Strauss, 74 N. J. Eq. 678, 75 Atl. 763; Summers v. Moore, 113 N. C. 394, 18 S. E. 712. The burden of proof is on the party claiming the trust to prove that the purchase was made witlTmoney belonging to him. Millard v. Hathaway, 27. Cal. 119; Webb v. Webb, 130 Iowa, 457, 104 N. W. 438; Jones v. Hughey, 46 S. C. 193, 24 S. E. 178; Cottonwood County Bank v. Case, 25 S. D. 77, 125 N. W. 298. In the latter case, as stated in the syllabus, this court 'held: “One who claims that his money has been used to purchase land, title to which is taken by another, has the burden to establish it by clear proof.” An extended review or discussion of the evidence adduced at the trial would serve no useful purpose and need not be attempted. [2, 3] The evidence is sufficient to ©how that the money which was paid to Richard H. Smith as the purchase price of the land was in possession of and paid over by Samuel C. Wallace. Were it not for the fact that Samuel C. Wallace himself caused the deed to be taken in the name of Edward C. Wallace it would be a fair assumption, in the absence of other evidence, that the money in possession of Samuel C. Wallace belonged to him, but inasmuch as a resulting trust is never presumed from such a transaction, but must be proved by him who alleges it, we think that when Samuel C. Wallace paid to the seller money in his possession, and took the deed in the name of Edward C. Wallace, it may be fairly presumed, in the absence of other evidence, that thé money wras the money of Edward C. Wallace. In any event,' it 'is clear ■that the transaction itself can hardly be viewed as' presenting a — 614 — preponderance of evidence in favor of plaintiff’s claim to th'e money which was the purchase price of the land. The only affirmative evidence in the record which- can be -considered as having any bearing, direct or indirect, upon the question of the ownership of the fund or of the land purchased with it consists of the testimony of five witnesses who testified, in substance, that they had heard Samuel C. Wallace say that he did not own the land in Controversy, but that it belonged to his brother, and also the testimony of one witness who testified on behalf of plaintiff that at the time the deed -was executed Samuel C. Wallace claimed the land was -his, and that he was taking title in the name of his brother, and of -one or two other witnesses who- testified- to statements made by Samuel C., Wallace in his lifetime to the effect that the land belonged to him. It is conceded that Edward C. Wallace resided in New York, and never was in the state of South Dakota, and the record is silent as to any claim to this land ever having been made by Edward C. Wallace or his heir, Lena Wallace Cunningham, until about the time probate proceedings were instituted. There was also testimony in the record tending to show that Samuel C. Wallace said he had made certain remittances, of $100 per year to his brother Edward C. Wallace, arising out of the rentals, or use of the land itself. Appellant contends that, under the evidence in the record, defendant should be held barred by the 20-year statute of limitations from claiming any right, title, or interest in the land in controversy. It is conceded that fpom the time the land was purchased in 1887, up to the time of his death in 1902, Samuel C. Wallace controlled and leased the land, -and that Diana E. Wallace, plaintiff’s -widow, devisee of Samuel C. Wallace, exercised similar control over the land up to the time of -the trial of this action. It is also conceded that the land was assessed in the name of Samuel C. Wallace from 1888 to ,1909, and that the -taxes were paid by -him and his surviving widow. But, as we have seen, th-e trial court found that the land in controversy was the property of, and was purchased -with money of, Edward C. Wallace, and that the occupation of the premises between -the years -1887 and 1902, both inclusive, was not adverse, hostile, or under a claim or right or title thereto-, but was in subordination t-o the title of Edward C. Wallace. — 615 — [4] The burden of showing title to the property by adverse possession rests upon the plaintiff, and the record fails to show any sufficient evidence of adverse claim upon which to found such title. [5] The court having found that Edward C. Wallace was the owner of the property in dispute, and that the possession of Samuel C. Wallace was in recognition of and subject to the title and ownership of Edward C. Wallace, it is entirely clear that Samuel C. Wallace could acquire no adverse right, title, or interest in said property by reason of the fact that he leased and controlled the property, and that it was assessed in his name, and that he paid the taxes thereon, even during a long series of years. [6, 7] Appellant further contends that, upon the facts- disclosed in the record, the- defendant should be held estopped by laches from now claiming title to the property in -controversy. It might be sufficient to note the fact that no estoppel is pleaded in the plaintiff’s reply to defendant’s' counterclaim. But, regardless of the want of proper pleading, the evidence itself is not sufficient to establish an estoppel by laches under the rule contended for by appellant. Appellant’s statement of facts nowhere shows that Samuel C. Wallace expended money for or made improvements on the land, or did any act hostile or detrimental to the legal title vested in Edward C. Wallace by the deed. The case at bar is not within the facts or the principles involved in the cases of Shelby v. Bowden, 16 S. D. 531, 94 N. W. 416; Murphy v. Dafoe, 18 S. D. 42, 99 N. W. 86; Wampol v. Kountz, 14 S. D. 334, 85 N. W. 595, 86 Am. St. Rep. 763. So long as Samuel C. Wallace was in possession and control of the land in subordination to the legal title of Edward C. Wallace, and committed no act hostile to such title, mere silence on the part of Edward C. Wallace could never give rise to an estoppel by laches as against him. Counsel for appellant and respondent have analyzed and discussed with great -care the effect and probative weight which should be accorded the testimony of each witness and of each fact disclosed in the evidence, but we deem it unnecessary to attempt' a review of the evidence or of such discussion. It is sufficient for the purposes of this appeal to say we have reviewed with much care the discussion of counsel and the entire evidence in the record. We are not convinced that the findings of -the trial court are — 616 — against the preponderance of the evidence, and therefore, under the well-settled rule of this court, we do not feel at liberty to disapprove the findings of the trial court. We are inclined to the view that thé findings and judgment of the trial court should be affirmed. It is so ordered. ■