Quirk v. Bedal

Respondent, Mary Quirk, commenced this action to quiet title to lots 7 and 8, block 89, in the city of Boise, which is a two-story residence property that was of the value of $11,000 at the time the case was tried.

Appellant, Kate Cecelia Bedal, had, in 1917, brought an action in the district court in Gooding county, against Nellie Payne Johnson, wherein, among other things, she had recovered a money judgment for $40,000, against Nellie Payne Johnson, and certain interests in real property the title to which stood upon the records in the counties where the same was situate in the name of Mrs. Johnson, and included the premises involved in this action. The judgment of the district court in Gooding county directed defendant Johnson to convey these premises, with other property, to Mrs. Bedal, but she failed to do so, and after the entry of the judgment she perfected an appeal from the same to this court and left the state, remaining beyond the jurisdiction of its courts for a number of years and during the pendency of this action.

The final decision in that action is reported in Bedal v.Johnson, 37 Idaho 359, 218 P. 641, and it holds that Nellie Payne Johnson was the owner in fee of an undivided one-half interest in said premises, reversing the judgment of the district court in Gooding county, which had held that Mrs. Johnson owned only the legal title and that the beneficial or equitable title was in Mrs. Bedal. When that action was commenced in Gooding county, a lis pendens was filed in Ada county, where this and other property involved in that action was situate. The district court appointed Hon. Isaac N. Sullivan, receiver, and directed him to take possession of all the property included in the suit of Bedal v. Johnson, supra, which was accordingly done and the receiver maintained possession and control of the same during the pendency of this action, but was not made a party to it. Nellie Payne Johnson did not give a supersedeas to stay the judgment against her, and Mrs. Bedal, being unable to enforce the same according to its terms, by reason of the absence of the defendant Johnson, caused an execution to be issued upon her money judgment against the interest of Nellie Payne Johnson in the real estate located in Ada county. The execution particularly described the interest being sold as:

". . . . all the right, title, claim and interest of Nellie Payne Johnson, the judgment debtor, in and to the following described real property standing upon the records of said county of Ada in the name of Nellie Payne Johnson, judgment debtor, which said property is particularly described as follows, to-wit: Lots numbered seven (7) and eight (8) in block numbered eighty-nine (89) of the Original Townsite of Boise City . . . ."

The sheriff duly noticed the property for sale and in the notice limited the interest being offered for sale to the interest of Nellie Payne Johnson, and at the sale, had August 30, 1919, stated that this was the interest being sold under the execution. Respondent, Mary Quirk, purchased this interest of Nellie Payne Johnson at this sale and the sheriff issued to her a certificate of sale in the usual form, but limiting the interest purchased to the interest of Nellie Payne Johnson. At the expiration of the period of redemption, the sheriff's deed in like manner described the interest being conveyed by virtue of such sheriff's deed, as all the right, title, claim and interest of Nellie Payne Johnson.

Respondent Mary Quirk brought her action against Kate Cecelia Bedal, her husband James Bedal, Nellie Payne Johnson, and the unknown heirs of O.P. Johnson, the deceased husband of Nellie Payne Johnson. The complaint, inter alia, alleges that plaintiff is the owner and entitled to the possession of said premises; that defendants claim some interest therein adverse to her, which is without right; that she deraigned her title from Nellie Payne Johnson, who was the owner in fee simple and in possession until plaintiff acquired her right under the execution sale in the Gooding county action; that she purchased this property at such sale for $5,000 and subsequently received the sheriff's deed for the same; that prior to the sale defendant Bedal repeatedly requested her to bid at the sale, and represented and caused to be represented to her that Nellie Payne Johnson was the owner of the property and that she, Bedal, claimed no interest therein; that if plaintiff should purchase this property and receive a sheriff's deed for the same, her title would be absolutely good. It is further alleged that these representations were false and were known to be false by Mrs. Bedal when she made the same; that plaintiff did not know that such representations were false but believed and relied upon them.

Defendant Johnson demurred generally, and defendant Bedal generally and specially, on the ground that the complaint did not state any facts to entitle plaintiff to equitable relief and that it was insufficient and uncertain with reference to the alleged representations plaintiff relied upon to create an estoppel. The demurrers being overruled, Mrs. Bedal answered and specifically denied all of the alleged misrepresentations but alleged that she had an interest in this property, and set up all the facts and circumstances pertaining to the property involved in the suit between herself and Nellie Payne Johnson in Gooding county material to this action and about which plaintiff claimed to have been deceived, and alleged that they were all matters of public record in Ada county and equally accessible to plaintiff and that she had both actual and constructive notice of defendant's interest in the premises that was being sold, and also, of the interest that defendant Johnson claimed. She further alleged that when she learned that respondent claimed to have been mistaken about the interest she had purchased at this execution sale, appellant Bedal offered in writing to have the property sold and out of the proceeds plaintiff might first be paid the $5,000 she had bid with interest; that the property was worth $10,000 and that it would be inequitable and unconscionable for the court to permit plaintiff to acquire the interest of both of these defendants for half the value of the property, which offer respondent rejected. Nellie Payne Johnson filed a separate answer and denied all the equities of plaintiff's complaint and alleged that plaintiff had both actual and constructive notice of all of the facts pertaining to the title to this property at the time she purchased the same.

Defendant Bedal, in her answer, pleaded that the property was in the possession of the receiver and that such receiver had not been made a party to the action, nor had permission to sue him been obtained from the court appointing such receiver, and denied the right of the court to proceed in this state of the record. Defendant Johnson prayed that the hearing of the case be suspended until the appeal in the case of Bedal v. Johnson, supra, could be heard and the title to this property finally determined. The court denied both of these motions and proceeded to try the cause apparently upon the theory that the judgment of the Gooding county action, upon which the execution sale had been made, was a final judgment that fixed the status of the title to the property, although there was a stipulation in this action that the case was then pending on appeal to this court and that the property was in the possession and control of the receiver in that action.

The trial court overruled the contention of defendant Nellie Payne Johnson that the suit was premature and held that upon the record itself appellant Bedal was estopped from claiming any interest in the property and that the whole title thereto should be quieted in respondent Quirk upon the theory that the judgment of the lower court in the Gooding county action was a final judgment, so far as respondent's action was concerned, that fixed the status of the title of the property sold at the execution sale. The court's preliminary memorandum decision, quoted in appellant Bedal's brief, stating that its ultimate conclusion would be for respondent Quirk and directing findings and conclusions to be drawn, shows that the court took this view of the law, for it says:

"Defendant Bedal rests her right to retain the five thousand dollars which she received, upon the execution and sale had thereunder. She is consequently estopped to deny any irregularity in the execution proceedings. The execution in turn depends for its efficacy upon the judgment. This judgment defendant Bedal obtained, and therefore is estopped to deny its validity and cannot dispute the terms of the judgment."

The third finding contains the following:

"That said judgment then was, and ever since has been a final, valid, subsisting judgment of a court of competent jurisdiction, unreversed and unmodified."

Some doubt seems to have arisen about the correctness of this conclusion of law being sufficient to sustain the judgment for the court later said:

"If, in the case at bar, the court should not find upon the issue of fraud, and the case were appealed and the supreme court should hold that the other conclusions of the court based upon estoppel on the record were improper, the supreme court might well say that if the court had found upon the issue of fraud the judgment might have been sustained upon that ground in favor of whichever party the court might have found. It would seem from the application of this rule that the issue of fraud was therefore a material issue.

"I have accordingly signed the findings as submitted by plaintiff with some modifications thereof."

Where a court has erroneously held that the record facts show constructive fraud sufficient to create an estoppel in pais and support a decree taking the real property of one party and giving it to the other, the possibility of a reversal of such holding by a reviewing court affords no reason in law for the court to allow the prevailing party to add to the record additional findings of actual fraud in order to reinforce such erroneous decree and avoid a reversal.

After Mrs. Bedal's recovery of a judgment against Mrs. Johnson and her departure from the state holding the legal title to this property, Mrs. Bedal clearly had a right under C. S., sec. 6917, to levy upon and have sold Mrs. Johnson's interest in this property, whatever it might be. This section provides, "All goods, chattels, moneys and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, and all property and rights of property," are subject to sale under execution. When this section of our statute was taken from California Civ. Proc., § 688, its courts had construed the words "real property" as therein used, to be coextensive with lands, tenements and hereditaments, and embraced all titles, legal or equitable, perfect or imperfect, executory or executed, and that any such interest or claim of interest was subject to execution sale. (Leese v. Clark,20 Cal. 387; Kennedy v. Nunan, 52 Cal. 326; Leroy v. Dunkerly,54 Cal. 452.) As to what the term "property" comprehends, as applied to lands, see Soulard v. United States, 4 Pet. (U.S.) 511, 7 L. ed. 938.)

The judgment which Mrs. Bedal had obtained against Mrs. Johnson, not having been in any manner stayed, she not only had a right to levy upon and sell the interest of Mrs. Johnson, but she also had a right to rely upon the well settled and nearly universally applied rule stated in 23 C. J. 746, § 789: "``Purchasers at execution sales must take notice of the title for which they bid. The doctrine of caveat emptor applies. There is no implied warranty of title." See authorities cited in notes 11 and 12 in support of this text, showing that practically every jurisdiction in the United States has so held. This court so held in Glover v. Brown, 32 Idaho 426,184 Pac. 649.

Hence, the holding in the instant case that appellant Bedal, by causing an execution sale of the interest of Mrs. Johnson in these premises, is thereby estopped as against the purchaser to assert her own interest in this property, is contrary to all authority.

C. S., sec. 6939, was taken from California C. C. P., sec. 708, and provides a definite and certain remedy for any purchaser at an execution sale of real property, who has mistakenly or by fraud been induced to purchase such property, where the title thereafter fails by reason of a reversal or discharge of the judgment. This statute has been construed inCross v. Zane, 47 Cal. 602, followed in Hitchcock v. Caruthers,100 Cal. 100, 34 P. 927, and Merguire v. O'Donnell, 139 Cal. 6, 96 Am. St. 91, 72 P. 337, and held to be remedial in character, and should be liberally construed so that if the property sold was not the property of the defendant in the execution, it amounted to a sale of property not subject to execution and sale within the intent of the statute and that the purchaser was entitled to recover the purchase price paid. This court has followed this construction in Cantwell v. McPherson,3 Idaho 321, 29 P. 102; Lewiston Nat. Bank v. Tefft, 6 Idaho 104,53 P. 271; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042.

It is erroneously contended that if respondent Mary Quirk, is not protected in this action, it would result in her obtaining nothing of value by her purchase at this execution sale. Appellant Bedal had bid approximately $5,000 for Nellie Payne Johnson's interest in this property, and respondent, making the next higher bid of $5,000, obtained the certificate of sale. It is apparent that Mrs. Bedal regarded the interest of Mrs. Johnson as worth the amount she bid for it. Respondent had the right, under C. S., sec. 6939, to recover the amount she bid, if the title failed by reason of any irregularity in the execution, or fraud or misrepresentation made to her by the execution creditor. She therefore had a complete remedy under this statute to recover back the amount she paid if, in fact, she had been deceived or defrauded. In addition to this, appellant, when she found that respondent claimed to have been defrauded, offered that the entire property, including appellant's interest, might be sold and out of the proceeds respondent should first be paid her money with interest, which offer respondent rejected.

It must be apparent why respondent Quirk refused to consent that both the Bedal and Johnson interests, which included the entire property, be sold and out of the proceeds take her money, or to avail herself of the remedy under this statute, and began this action and alleged that she had been fraudulently induced to make the purchase by Mrs. Bedal, who, she claimed, should be estopped from asserting her title because of such fraudulent representations. If respondent Quirk could, in that manner, induce a court to sustain her contention, she would secure this entire property for half its value. If she failed to do that and this court in the Bedal-Johnson appeal gave the property to the appellant in that action, the entire property would vest immediately in her because of her purchase of this interest at the execution sale, and finally, if she failed to get the whole of this property by either of these methods, her remedy to recover the money with interest, under C. S., sec. 6939, would protect her from the loss of any of the money she had put into this venture.

It is difficult to conceive of how, under this state of facts, all of which are record facts, her complaint for equitable relief presents any question that should appeal to the "conscience of the chancellor," that is or always should be governed by the principles of equity, which, in their broad sense, signify natural justice. To take from appellant a valuable property interest and give it to respondent, under the admitted facts disclosed by this record, is neither natural justice nor justice at all, and is contrary to both law and equity.

Over objection respondent was not only permitted to relate conversations claimed to have been had with appellant, but also a conversation claimed to have been had with her attorney, although there is nothing in the complaint with reference to such alleged conversation with her attorney, nor are any of the facts relied upon to constitute such estoppel set out with any degree of particularity. In Seat v. Quarles, 31 Idaho 212,169 Pac. 1167, the question of the sufficiency of pleadings arose under a like situation and the case was reversed, the court saying:

"If the respondents had intended to claim that appellant was estopped from asserting his mortgage lien by reason of any conduct or conversation had in reference thereto, this defense should have been specially pleaded, and the facts relied upon as constituting an estoppel should have been alleged with the most careful particularity. The broadly stated rule to which a pleading must conform is that, 'as an estoppel in pais may operate to exclude the truth, it should be pleaded with certainty in every particular, and the facts should be set forth with great particularity and precision, leaving nothing to intendment.' (10 R. C. L. 844)."

In Kemmerer v. Pollard, 15 Idaho 34, 96 P. 206, the rule with regard to the manner in which deceit and false representations must be pleaded, in order to affect the validity of a sale, is thus announced:

"The law is well settled that where a party seeks to recover on the grounds of deceit and false and fraudulent representations, that he must plead the particular representations that were made and that they were false and fraudulent and material, and that the party injured believed and relied on such statements. . . . . It must also appear as to whether or not the party, in fact, relied and acted upon the false and fraudulent representation . . . . not knowing orhaving equal means of knowing of its falsity."

The allegations of the complaint were clearly insufficent to admit this testimony over the objection of appellant. (Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Jackson v.Collins, 39 Mich. 557; Williams v. Hall, 207 Mo. App. 432,230 S.W. 126; Kimble v. Gillard, 177 Mich. 250, 143 N.W. 79.)

Estoppel in pais, in order to affect the legal title to land, requires: (1) That the party making the admission, by his declaration or conduct, was apprised of the true state of his own title; (2) that he made the admission with the express intention to deceive, or with such careless or culpable negligence as to amount to constructive fraud; (3) that the other party was not only destitute of all knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge; (4) that he relied directly upon such admission and will be injured by allowing its truth to be disproved.

The leading case in support of this doctrine is Biddle Boggsv. Merced Mining Co., 14 Cal. 279. This case has been approved by the United States supreme court in Henshaw v. Bissel, 18 Wall. (U.S.) 255, 21 L. ed. 835, and in Brandt v. Virginia Coal Iron Co., 93 U.S. 326, 23 L. ed. 927. This is the rule in all the federal courts and in the majority of the state courts. In Pomeroy's Equity Jurisprudence, 3d ed., vol. 2, p. 1433, the author gives the reason for the rule to be that while the owner of land may by his acts in pais preclude himself from asserting his legal title, it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is opposed to the letter of the statute of frauds and it would greatly tend to the insecurity of titles, if they were allowed to be affected by parol evidence of light and doubtful character. InDavis v. Davis, 26 Cal. 23, 85 Am. Dec. 157, the court says:

"The doctrine of estoppel in pais should not be too readily extended when the effect of it is to divest men of their estates in lands. It should be remembered that we have a statute which makes a writing essential to the assignment or creation of an estate in real property, and that one of the objects of such statute was to render estates secure."

The rule of evidence for establishing title by estoppelin pais is the same as for establishing a resulting trust, both being a title created by operation of law out of the acts and conduct of the parties and contrary to our statute which declares that a title or interest in real estate can only be created by an instrument in writing.

Rice v. Rigley, 7 Idaho 115, 61 P. 290, cited in 23 A.L.R., at page 1521, supports the doctrine that to establish a title as a resulting trust by parol, "the evidence must be so clear and certain as to leave no well-founded doubt upon the subject." In the extensive notes to Lefkowitz v. Silver,182 N.C. 339, 23 A.L.R. 1491, pp. 1517 to 1524, 109 S.E. 56, the doctrine that merely a preponderance of evidence is insufficient and that a resulting trust must be established beyond a doubt and by evidence that is conclusive, is shown to be the well-nigh universal rule, and there is virtually no responsible authority holding that a preponderance of evidence is sufficient.

The rule of law for creating a title by estoppel comes within the same principle of law and for the same reason. A title cannot be created by estoppel except it be done under the rule announced in Rice v. Rigley, supra, that the evidence must be so clear and certain as to leave no well-founded doubt on the subject, or as stated by most of the courts, the evidence must establish the claim beyond a reasonable doubt. Hence, the decisions of the courts, blandly referred to, holding that where there is any evidence to support the findings of the court below, this court will not disturb such findings, have no application where the title is sought to be established by estoppel, because such title must be established by evidence so clear, certain and convincing as to leave no well-founded doubt.

The evidence in this case does not even by a preponderance support the findings, much less is it sufficient to establish an estoppel in pais. The undisputed evidence shows that respondent did not rely upon representations made to her by appellant, but that she employed a lawyer to look up the records and that he made statements to her sufficient to cause her to make an inquiry. Respondent admits that her attorney suggested that she have the records examined before she paid her money. A lis pendens of the Bedal-Johnson action was filed October 1, 1917, and a copy of the judgment was filed in Ada county, May 14, 1919, and respondent had constructive notice of all that this record contained.

The third finding, wherein it is said that the judgment in the Bedal-Johnson case was final, is directly contrary to the record, because an appeal was then perfected and the judgment was subsequently modified and reversed in part in this court.

The trial court says that, "where loss must fall on one of two equally innocent parties, or parties with equal knowledge, the loss should fall on the moving party." This maxim has no application to the facts of this case, because respondent Quirk did get an interest in the property, purchased at the execution sale. The interest she purchased at this sale was all the right, title and interest of Nellie Payne Johnson, who had owned the legal title and an undivided half interest in the beneficial title since her husband's death. It is a fundamental rule of equitable estoppel that it extends only so far as may be necessary to protect from loss the party entitled to assert it. The maxim that where loss must fall on one of two equally innocent parties, it should fall on the moving party, has no application where it affirmatively appears that there is no loss. The party who invokes estoppel must be able to point to some injury he will sustain if the truth is told. McLemore v.Brickerstaff (Tex.Civ.App.), 179 S.W. 536; estoppel is never intended to work a gain to a party; its office is to protect him from a loss which, but for the estoppel, he could not escape. Ramsey v. Chilson, 57 Cal.App. 785, 208 P. 319;Conway v. Supreme Council, 137 Cal. 384, 70 P. 223; Scott v.Jackson, 89 Cal. 258, 26 P. 898.

Judge Cooley, in delivering the opinion in Maxwell v. BayCity Bridge Co., 41 Mich. 453, 2 N.W. 639, said:

"The doctrine of estoppel rests upon a party having directly or indirectly made assertions, promises or assurances upon which another has acted under such circumstances that he would be seriously prejudiced if the assertions were suffered to be disproved or the promises or assurances to be withdrawn. But as the doctrine when applied operates to take away legal rights, it is no more than common justice to require that the facts which are supposed to call for its application shall be unquestionable, and the wrong which is to be prevented shall be undoubted."

In re Hill's Estate, 79 N.J. Eq. 521, 82 Atl. 338, states the rule as follows:

"It is a fundamental part of the doctrine of equitable estoppels that the estoppel extends only so far as may be necessary to protect from loss the party entitled to assert it. He may claim indemnification, but not profit."

This rule is supported by a long line of authorities therein cited. To the same effect are: Gjerstadengen v. Hartzell, 9 N.D. 268, 81 Am. St. Rep. 575, 83 N.W. 230; Llano Granite Co.v. Hollinger (Tex.Com.App.), 212 S.W. 151; Green v. Stevenson (Tenn.Ch.App.), 54 S.W. 1011.

C. S., sec. 6917 authorizes the sale of any interest in real estate which the judgment creditor may believe the judgment debtor possessed of. An execution creditor has the right to sell any pretended title or claim of the judgment debtor to any property whatsoever. If it turns out that he had no title, nothing passes by the sale; but the levy of an execution is not of itself a warranty, nor even an assertion, that the judgment debtor has even a valid title to the premises, if the judgment debtor has but a naked possession, or if he assert only a baseless claim to the property, the creditor has the right to subject it to his execution without thereby committing himself to the purchaser, in the least degree, as to the nature or validity of the title to be sold. The mere act of causing property to be sold, under his execution, by the judgment creditor, is, at most, but equivalent to a declaration that the judgment debtor has, or claims to have, some kind of title to or interest in the property, but is not an averment that, in point of fact he has any title whatsoever. Much less can it be held to be an averment that he has a valid title. The doctrine of estoppel in pais proceeds wholly on the theory that the party to be estopped has, by his declarations or conduct, misled another to his prejudice, so that it would be a fraud upon him to allow the true state of facts to be proved. Can it be said, with truth, that a judgment creditor, by the mere act of causing whatever title or pretense of title the judgment debtor had, to be sold under execution, has deluded the purchaser into the belief that the debtor has a valid title? The law will not presume the purchaser to be so deluded. (Martin v. Zellerbach, 38 Cal. 300.)

Eastwood v. Standard Mines etc. Co., 11 Idaho 195,81 Pac. 382, appears to be the leading authority, cited in support of an estoppel in pais, relied upon by respondent. Briefly, the facts in that case were that defendant mining company held a lease from the owners of the fee of some patented mining claims and employed men to do some work on the same. While this work was being done, one of the owners of the claim was upon the premises and saw posted thereon, in a conspicuous place and manner, a statement that they belonged to the company that had only a lease and was working the same, and that such claims were not encumbered. It was forty-five miles from the county seat where the record title could be examined, and in winter season when a part of the distance could only be traveled on snowshoes. After the work was done the owners of the claims and the lessee company sought to defeat the laborers' liens by claiming that the working men should have examined the record and had they done so they would have known the company had only a lease. The court rightly held that all the defendants were estopped to set up such a defense. To contend that the facts of this case, or either of the cases from which excerpts are quoted, support the judgment in the case at bar, seems to me puerile and not to merit an extended consideration.

C. S., sec. 7974, provides that: "No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing."

C. S., sec. 7976, subd. 5, makes a transfer, or lease for more than a year, of lands, invalid, except it be in writing.

These statutes, requiring that an estate in real property can only be lawfully created by an instrument in writing, are merely statutory declarations of the rule at common law that is based upon the statute of frauds, which has prevailed in every jurisdiction where the common law is followed as the foundation of its statutory law. The principal reasons for its adoption were to render persons more secure in their landed estates and to prevent the owners from being deprived of such interest by reason of the uncertainty, and frequently the unreliability, of parol evidence, which may be and often is, where there is sufficient inducement offered, based upon conspiracies supported by perjured testimony.

Courts of equity found that the enforcement of this law, according to its strict letter, would sometimes result in an injustice and to avoid this the doctrine of estoppel in pais was resorted to and titles were thus created by operation of law. But courts of equity have always sparingly applied this doctrine in order to create titles. It has rarely, if ever, been done by a chancery court of high standing upon a bare preponderance of the testimony, or where the facts and circumstances giving rise to the alleged fraud or deceit upon which the estoppel is founded, were not established by evidence so clear and certain as to leave no well-founded doubt on the subject.

The decision in the instant case wholly disregards this salutary provision of this equitable principle and approves the judgment of the court below that the interest of Mrs. Bedal shall be taken from her and given to respondent, because she testified that she had been deceived and misled to her injury about the condition of the title when she purchased the property, although she admits she was in the courthouse where the records were before her for examination, and where she, with her attorney, had examined the record as to this title with reference to taxes. This court now naively says that it cannot disturb a judgment even of this kind, if there is any evidence to support the findings of the court below.

It follows, under this decision, that if an estoppel in pais is an issue in the case and is dependent upon any question of fact, and the court finds that the estoppel is established, although such finding be against the overwhelming weight of the evidence, where there is any evidence to support the findings, this court is bound to sustain the judgment. Such a holding renders titles to real estate insecure and encourages unconscionable wrong.

The judgment of the court below should be vacated and respondent should be limited to the interest of Nellie Payne Johnson, which this court has said was a one-half interest in the property, or be required to accept a return of her money with interest.

Mr. Justice Budge authorizes me to say that he concurs in the foregoing dissenting opinion.