Linnel v. Hudson , 59 S.C. 283 ( 1901 )

February 25, 1901. The opinion of the Court was delivered by The plaintiff brought this action against the defendant, Rosaline Hudson, to recover possession of certain real estate, situate in the county of Pickens, and at the same time, brought actions of a similar character against the other four defendants, E.J. Evans, B.E. Johnson, Sarah E. Monroe and M.B. Duncan, separately, to recover the four portions of the original tract claimed by the defendant, Rosaline Hudson, which had been conveyed by her to the other four defendants. By consent, all of these actions were heard together, as they all depended upon the question whether Rosaline Hudson had good title to the original tract containing 1,173 acres, more or less. Subsequently the defendant, R.L.R. Bentz, was by consent made a party defendant, with leave to set up a mortgage which he claimed to hold on a portion of the original tract of 1,173 acres. By consent, an order was passed referring the case to D.P. Verner, as special referee, "to take the testimony and report the same, with his findings of fact and conclusions of law, together with any special matter, to this Court."

The referee took the testimony, which is set out in the "Case," and made his report, and upon exceptions thereto filed by the plaintiff, the case was heard by his Honor, Judge Buchanan, who rendered judgment overruling the exceptions and confirming the referee's report. From that judgment, plaintiff appeals upon the several grounds set out in the record.

The referee in his report states the facts so fully and clearly that we need not repeat them here, as that report, together with the exceptions thereto, should be incorporated by the Reporter in his report of the case; the exceptions to the judgment of the Circuit Judge being simply repetitions of the exceptions to the referee's report, need not be reported. The conceded fact is that the land in question, the 1,173 acre tract, originally belonged to one Frank Hammond, and the controlling question is, whether the title passed from him to the plaintiff, Linnel, or to the defendant, Rosaline Hudson. There is no doubt that in form the title passed to the plaintiff, for on the 19th of January, 1891, by his deed of that date, Hammond conveyed the land to the plaintiff. But it is contended by the defendant, Rosaline Hudson, that she paid the purchase money, and from that circumstance a trust resulted in her favor, although the title was in form taken in the name of the plaintiff. Next she contends that she acquired the legal title to the land by the deed of the 22d of November, 1898, executed to her by the plaintiff, through his attorney in fact, duly appointed for that purpose.

First, as to the resulting trust, if the fact be as claimed by the defendant. Rosaline Hudson, that she paid the purchase money when the land was conveyed by Hammond to Linnel, then it is clear under the authorities (2 Pom. Eq. Jur., sec. 1037; Rogers v. Rogers, 52 S.C. at page 392), that a trust resulted in favor of the defendant, Rosaline Hudson. That such was the fact is found by the referee and concurred in by the Circuit Judge, and such finding is fully sustained by the testimony.

It is contended, however, by the appellant that the parol testimony offered was for the purpose of establishing an express and not a resulting trust; and that parol testimony is incompetent to establish an express trust. While it is true that an express trust cannot be proved by parol testimony, it is equally true, and in fact is very properly admitted in this case, that such testimony is competent to establish a resulting trust; and it seems to us that such was the sole purpose of the testimony adduced in this case; and so far as we can perceive, there was no testimony offered tending to show any express trust. The testimony is all set out in the "Case," and without undertaking to repeat it here, it is sufficient to say that, in substance, it was as follows: that the negotiations for the purchase of the land from Hammond were with W.A. Hudson, the husband of the defendant, Rosaline Hudson, who was acting as her agent — that pending these negotiations and prior to the consummation of the trade, Hudson paid to Hammond the sum of $20 out of his wife's money, in part payment of the land, and took a receipt therefore from Hammond to himself, as agent for his wife, as he testifies, which receipt, bearing date 16th of December, 1880, was offered in evidence; and when the trade was finally consummated, and the deed of the 19th of January, 1881, was executed to Linnel, the said W.A. Hudson, as agent of his wife, and with her money, paid the balance of the purchase money to Hammond. All this appears from the testimony of Hammond, W.A. Hudson, his wife, and a negro who was a subscribing witness to the power of attorney hereinafter referred to; and the only testimony in opposition to it is that of the plaintiff, who said he paid all of the purchase money to Hammond, although he admits that he did not have money enough to make such payment, and had to borrow five-sixths of the amount from one J.T. Nix, who, however, was not examined as a witness to corroborate his statement. This testimony, while quite pertinent to establish a resulting trust, did not tend to show an express trust. It is not surprising that both the referee and the Circuit Judge concluded that the preponderance of the evidence was in favor of the view that the defendant, Rosaline Hudson, had paid the purchase money for the land, although the title was made to the plaintiff. This was quite sufficient to establish a resulting trust in favor of the defendant, Rosaline Hudson, in the absence of any testimony whatever tending to show any intention on her part to make a gift to the plaintiff, and also of any testimony tending to show that there were any such relations between her and the plaintiff, from which the law would presume an intention to make a gift, such as that of parent and child or anything of the kind. The first position taken by the defendant, Rosaline Hudson, must, therefore, be sustained.

This would be conclusive of the case, and would supercede the necessity for considering the second position taken by this defendant; but as the question has been made and fully argued, we will not decline to consider it. The second position taken by this defendant is that she has acquired full legal title under the deed of 22d November, 1898, made to her by the plaintiff, through his attorney in fact, W.A. Hudson. It seems that on the 26th January, 1881, the plaintiff executed a full power of attorney to W.A. Hudson, authorizing him "to mortgage, bargain, sell and dispose of all or any part of the land in question, and in my name and stead to executed good and legal titles to the same or any part thereof," and also declaring the said power irrevocable. Passing by the papers executed on the 10th April, 1883, and 17th March, 1894, which are claimed by plaintiff to have been ineffectual attempts to vest the title to the land in question in the defendant, Rosaline Hudson, and even assuming for the purposes of this inquiry, that such attempts were ineffectual, there still remains the deed of the 22d of November, 1898, by which W.A. Hudson, as the attorney in fact of the plaintiff, did, in proper form, convey the said land to the defendant, Rosaline Hudson, which deed was duly recorded within the prescribed time in the proper office; and this we think was sufficient to vest the legal title in her. The plaintiff, however, makes two objections to this deed: 1st. Because it was without consideration, or rather based upon a mere nominal consideration — $5 — and was, therefore, an unauthorized exercise of the power conferred by the letter of attorney from the plaintiff to W.A. Hudson, above referred to. 2d. Because the power of attorney was revoked by the plaintiff before the defendant, Rosaline Hudson, acquired title by the deed of the 22d of November, 1898. As to the first of these objections, while a deed executed by an attorney in fact, without consideration, or upon a merely nominal consideration, under a power to bargain, sell and dispose of land, may be invalid, yet if the fact be, as we have seen it is, that the defendant, Rosaline Hudson, paid the purchase money of the land in question, when the title was made to Linnel, the plaintiff, and thereby a trust resulted to her, then that fact is quite sufficient to afford a consideration for the deed of 22d November, 1898, and the plaintiff, in making that deed, through his attorney in fact, was doing no more than the Court of Equity would have required him to do. It is clear, therefore, that there is no foundation for the first objection.

The second objection has no foundation in fact; for the papers set out in the "Case" show on their face that the paper undertaking to revoke the power conferred on the attorney in fact was not executed until the 29th of November, 1898, seven days after the execution of the deed of the 22d of November, 1898, under which defendant claims, and there is no testimony tending to show any error in these dates. So that, passing by the fact that in the original power of attorney it was declared that the power was irrevocable, which may possibly have not been conclusive, it is manifest that the second objection is altogether untenable; for certainly it cannot be contended that a power can be revoked after it has been exercised. It is clear, therefore, that the plaintiff has failed to make out his title to the land claimed in either of his actions.

Under this view it becomes unnecessary to consider the question raised as to the validity of the mortgage set up by the defendant, R.L.R. Bentz, for the plaintiff has no interest in nor has he any right to raise such question. The only person, so far as we can perceive, who has any interest to raise an objection to that mortgage is the defendant, Rosaline Hudson, and it stated in the "Case" that she makes no such question.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.