Bush v. Bush

Anderson, J.,

delivered the opinion of the court.

This was a bill by appellees, Mrs. Maggie Bush, Mrs. Ben Smith, Mrs. Bula Smith, and SaUie Bell Bush, the widow and daughters of J. W. Bush, deceased, against appellant, J. A. Bush, the remaining child of the said J. W. Bush, deceased, and his widow, the said appellee, Mrs. Maggie Bush, for the sale and a division of the proceeds between appellees and appellant of four hundred nine acres of land alleged to have been inherited by them from the said J. W. Bush, deceased, the husband and father of the parties to said cause. The bill alleged that appellant and appellees were tenants in common of said four hundred nine acres of land, each owning a one-fifth undivided interest therein.

Appellant answered the bill, denying many of the material allegations thereof, and made his answer a cross-bill, by which he sought to establish a resulting trust in his favor in a one-half undivided interest in said land. The language of appellant’s cross-bill presenting this question follows:

‘ ‘ That said land was purchased by the said J. W. Bush and the said J. A. Bush on the 10th day of July, 1913, in pursuance of a mutual agreement previously entered into between them. Said land was purchased by the said J. W. Bush and J. A. Bush from W. T. Elam and Miss Ella Y. Allen by deed recorded in Deed'Book 44, at page 550, of the Records of Deeds of Leflore County,. Mississippi, dated July 10, 1913, the consideration therein being the sum of twenty thousand dollars, hereto referred to, and a copy of said deed being attached hereto made a part as Exhibit A hereto. That said land was purchased by both the said J. W. Bush and the defendant, according to the previous agreement entered into between them that it should belong to both, share and share alike. That the deed was taken in pursuance to said agreement in the name of the said J. W. Bush, as he was making the cash payment, being about one thousand two hundred dollars, the balance being on time. That both parties were to pay for said land jointly, and on the completion of the payment said defendant was to have a deed to one-half of the said property, and that the said J. W. Bush already had a place of his own, and only wanted this place for the benefit of the defendant.

“That the said defendant, on the execution of said deed, moved on said place, where he has ever since resided, and that they both proceeded to cultivate said place together, and work the place out of debt, paying off the purchase money, and that most of the work and improvement and management of said place was done by the defendant, the said J. W. Bush not residing on said land. That the said J. W. Bush and the defendant put considerable improvements on said place, and cleared up a large quantity of land; the said defendant, among other improvements, taking in some sloughs and draining them with tile, having bought tiling to the amount of two hundred eighty-seven dollars and paid for putting in tiling one hundred sixty dollars. That this defendant, after the death of the said J. W. Bush, recognized that the complainants were entitled to their distributive share of the interest of the said J. W. Bush in said land, and tendered them the rent as it accrued, according to their interest, and also tendered them their interest in the amount realized from the sale of said timber, all of which was refused.

“Defendant is advised that by virtue of the premises he is entitled to one-half interest in said land, and to a decree of this court adjudging him to be the owner of one-half interest in said land, and that he is entitled to a partition of said land, setting off to him his one-half interest. The premises considered, defendant prays that this his answer may be taken as a cross- bill against said complainants, and that they may be required to answer hereto; that on final hearing he may be granted a decree for a partition of said land, allotting to him a one-half interest therein, the answer under oath being hereby waived; and if cross-complainant is mistaken in the.relief herein prayed, may it please the court to grant unto the cross-complainant such further, other, and different relief in the premises as to the court may seem fit and as equity may require.”

Appellees demurred to appellant’s cross-bill, which demurrer was by the court sustained, and leave given appellant to amend, which leave he declined, and thereupon a decree was entered dismissing said cross-bill, and appellant was granted an appeal to settle the principles of the cause.

It is conceded by appellant that the agreement between his father and himself, as set up in his cross-bill, cannot, under section 4780, Code of 1906 (section 3124, Hemingway’s Code), be enforced as an express trust; that said agreement comes within the provisions of said statute requiring declarations or creations of trust in land to be manifested by writing signed by the party who declares or creates such trust or by his last will in writing, or else they shall be void. Appellant’s contention is that there arose out of said agreement between his father and himself, as set out in his cross-bill, a resulting trust by virtue of which he became entitled to one-half undivided interest in the said land in addition to his interest as an heir to his father in the other undivided interest therein.

It will be noted from appellant’s cross-bill that at the time the conveyance of the land involved was taken in the name of his father the entire cash purchase money payment of one thousand two hundred dollars was made by his father, and that the balance of the purchase money was paid afterwards by appellant and his father out of the proceeds derived from the cultivation of said lands. It is true that the cross-bill charges that appellant and his said father each were to pay one-half of the purchase money of the said land, but there is no averment that before the making of the deed to appellant’s father appellant became legally bound to his father or any one else to pay any part of the purchase money of said land. There is nothing more in the cross-bill than a mere charge that the understanding between appellant and his father was that each of them would pay one-half of the purchase price of said land and when so paid each should own a one-half interest therein.

Cases involving questions of resulting trusts have often been before this court. The following principles are recognized and declared by this court: If one buys land in the name of another and pays the consideration therefor, the land will be held by the grantee in trust for the benefit of him who advances the purchase money; and if there has been only a partial advance of the purchase money a trust will result pro tanto. The foundation of the trust in such cases is that the property really belongs to him whose funds have paid for it. But the facts creating the trust must qxist at the time of the conveyance; for it is the money which has gone to the vendor as an inducement to the conveyance that creates the equity called a resulting trust. After the title has been conveyed the application of the funds of another to pay the purchase money for the land creates no trust in favor of such other. The trust arises, if at all, at the time of the conveyance. McCarroll v. Alexander, 48 Miss. 128; Miazza v. Yerger, 53 Miss. 135; Brooks v. Shelton, 54 Miss. 353; Thomas v. Thomas, 62 Miss. 531; Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Barton v. Magruder, 69 Miss. 462, 13 So. 839; Logan v. Johnson, 72 Miss. 185, 16 So. 231; Moore v. Moore, 74 Miss. 59. 19 So. 953; Shrader v. Shrader, 119 Miss. 526, 81 So. 337. Pomeroy lays down the controlling principle thus:

“In order that this effect may be produced,-however, it is absolutely indispensable that the payment should be actually made by the beneficiary or tt at an absolute obligation to pay should be incurred by him as a part of the original transaction of purchase at or before the time of the conveyance. No subsequent and entirely independent conduct, intervention or payment on his part would raise any resulting trust.” 3 Pomerov’s Equity Jurisprudence (3d Ed.), section 1037.

And the principle is stated thus in 39 Cyc. 130: “Anti a subsequent payment will not give rise to a resulting trust, unless it is made in pursuance of and as a part of the original transaction or purchase, as where he secures the same at the time tobe thereafter paid,..” (Italiics ours.)

The case made by appellant’s cross-bill fails short of the requirements laid down by this court and the other authorities referred to. The purchase price of the land was twenty thousand dollars. Tbe cash payment of of one thousand two hundred dollars was made by appellant’s father; the balance of the purchase money was paid by the joint activities of appellant and his father from the proceeds of the crops raised on the land involved. The cross-bill simply charges that appellant and his father agreed that they would pay the land out together, and appellant should receive a conveyance to a one-half interest therein. There is no averment whatever that appellant entered into any binding obligation with his father by which he undertook 'to reimburse his father for his half of the initial cash payment or that he would pay one-half of the balance of the purchase money remaining unpaid.

In Logan v. Johnson, supra, the court, in discussing what was necessary in order to prove by parol the existence of a trust, approved'the following language from 2 Pomeroy’s Equity Jurisprudence, section 1040*;

“The evidence must be clear, strong, unequivocal, unmistakable, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt. Of course, the pleading must be as strong as the evidence.”

We hold that appellant’s cross-bill fails to show either that he paid any part of the purchase money before the conveyance of the land was made to his father, or that he became legally bound either to his father or the vendor of the land to pay any part of the balance of the purchase money. Therefore we hold that there was no resulting trust. According to appellant’s cross-bill, we have simply, an express trust resting entirely in parol, which is therefore void under section 4780, Code 1906' (section 3124, Hemingway’s Code).

Affirmed and remanded.