Haynes v. Switzer Real Estate Corp. , 100 Ind. App. 410 ( 1935 )

CONCURRING OPINION. I concur in the result reached herein for the following reasons:

The appellant contends that whether this is a suit in ejectment or a statutory action for the recovery of the possession of real property, he is entitled to a trial by jury on all the issues raised therein and the appellee contends that as to the issues formed by the third paragraph of answer and replies thereto that there was raised an equitable question as to whether or not there is a trust involved contending that such answer and replies thereto presented such a situation as only a court of equity could determine.

The sole question presented here is whether or not the appellant was entitled to a trial by jury on all the issues raised by the pleadings, when such jury was properly requested. The lower court evidently proceeded upon the theory that the third paragraph of answer and replies thereto raised the question of whether or not there was a constructive trust, while it entirely overlooked the possibility or probability of there being a resulting trust involved. Under the acts of 1852, the same being §§ 13442 to 13449, inclusive, Burns Revised Statutes, 1926, §§ 14734 to 14741, Baldwin's 1934, and §§ 56-601 to 56-608, Burns 1933, the legislature saw fit to take from the jurisdiction of equity and incorporate into the law and make part of our statutes the things necessary to constitute a resulting trust. Section 13449 supra, specifically provides that the provisions of § 13448 shall not extend to "cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid." Thus under the express statutory law a resulting trust arises if the alienee has taken an absolute conveyance in his own name without the consent of the person furnishing the money. Scott v. Dilley,et al. (1913), 53 Ind. App. 100, 105, 101 N.E. 313. It is, therefore, clear that under the statute law there was a resulting trust in the case at bar and the jury should have determined whether or not the conveyance was taken in the name of the alienee when the money was furnished by others. This is a question of fact which under the theory of jury trials could have been tried better by the jury than by the court. After the jury had determined whether or not there resulted a trust the court could then apply to the facts so found the law applicable thereto. Whether or not the alienee took the conveyance in his own name with money furnished by others is strictly a question of fact and questions of fact in such statutory actions as we have here should always be tried by a jury where there is a proper request made for such jury.

A resulting trust in Indiana, under our statute, arises by operation of law. The legislature has said in express and specific language what is necessary to raise a resulting trust and since such is the situation there is no occasion to call into action the equity side of the court. It is probably true that the equity principle was responsible for the passage of the act but after it became the law, in a statutory action under our code, (where there has been an attempt to do away with separate equity and law courts and combine them into one) and where a jury has already been called and is sitting, there is no need of applying equity as we think of it in a separate sense. All there is for such court to do is to apply the statutory law to the facts as found by the jury. Toney v. Wendling et al. (1894), 138 Ind. 228, 37 N.E. 598; Martin v. Martin et al. (1888), 118 Ind. 227, 236, 20 N.E. 763; Koehler et al. v. Koehler (1920), 75 Ind. App. 510, 121 N.E. 450; Puterbaugh v. Puterbaugh (1891), 131 Ind. 288, 30 N.E. 519; Heston v. Dougan (1912), 52 Ind. App. 40, 96 N.E. 614.

As has been said many times by the courts and authors a resulting trust arises "out of the accompaning facts and circumstances — out of the conduct of the parties." Thus where a jury has been requested and has a statutory definition before it it is competent to and should be the judge of the facts and circumstances in the conduct of the parties and determine whether or not such conduct conforms to the statutory definition.