Opinion
Rehearing Granted Jan. 16, 1959.
Everett G. Scott, West Union, for appellants.
Larsons&s Carr, Charles City, and John R. Cronin, Nashua, for appellees.
LINNAN, Justice.
This was originally an action in equity for the partition of 670 acres of land and a large amount of personal property consisting of livestock, farming machinery, and equipment located thereon. The only issue on this appeal is as to the ownership of 100 acres of this land, which the trial court held was owned by the defendants, Laura Todd Schroeder, Dorothy Todd (now Dorothy Todd Carpenter), and Elizabeth Todd Bigelow, subject to a life estate in their mother, Marion Todd (now Marion Todd Reints). The trial court ordered that all of the rest of the real estate and the personal property be partitioned by sale but denied partition of the 100 acres, holding that the plaintiffs had no interest therein.
It is the contention of the appellants that Harry G. Todd, now deceased, held title to this 100 acre farm in trust for himself and his three brothers, the appellants, Floyd G. Todd, Thomas C. Todd, and Elmer Todd, now deceased, and that the appellees owned only a one-fourth interest in said real estate. In defense of this contention, appellees pleaded the General Statute of Limitations (614.1), the Special Statute of Limitations (614.17), laches, and the Statute of Frauds, section 557.10, which require trusts in real estate to be executed in writing, the same as deeds of conveyance, and further that the alleged purpose of the trusts was against public policy and that the appellants did not come into a court of equity with clean hands.
In order to get a proper understanding of the contention of the parties, it is necessary to detail the facts in regard to the acquisition and operation of all of this real estate. One George Todd died in 1920 owning the 320 acre farm which is referred to in the record as the 'home' place. This farm was willed by him to his four sons, the appellants, Floyd G. Todd, Thomas C. Todd, and Elmer Todd and Harry G. Todd, now both deceased, subject to the life estate of their mother who died in 1933. At that time they were all single, except Floyd, and all lived with their mother on the place until her death in 1933. They operated under the name of 'Todd Brothers' and had but one bank account which was carried in the partnership name. They later acquired an adjoining 90 acre improved farm, which is referred to in the record as the 'Farrel' place. Sometime later they purchased an adjoining 100 acre improved farm known as the 'Huntley' farm, which is the subject of this litigation. Still later and after the death of Elmer Todd, they purchased another 160 acre farm adjoining the home place on the north.
The 100 acre farm in dispute was purchased in 1929 from one Claude Huntley for the sum of $12,500. At the time of the purchase, it was encumbered by a mortgage of $11,600 held by one Frank Hannemann. The difference between the mortgage and the contract price was paid out of the partnership account and later the mortgage was likewise paid out of partnership funds. The title to this farm was taken in the names of the four brothers. After it was acquired, it was operated the same as the rest of the land under the name of 'Todd Brothers' and all roceeds were deposited in the 'Todd Brothers' bank account and all expenses were paid out of the same account. It is admitted that the total purchase price was paid out of the income from their farming operations. Harry G. Todd married in 1929 and first moved on the Farrel place, where he lived for about five months, and then he moved onto the Huntley farm where he lived until his death in 1951. It is admitted that the taxes on the Huntley place, insurance premiums, lime, and other expenses of operation were paid out of the partnership account. There were also some improvements made on the Huntley place consisting of a new hen house, new cattle shed, the house partly reshingled, and a floor put in the hog house, all of which were paid for out of the partnership account.
In 1937 an application was made for a homestead tax exemption by Harry G. Todd on the Huntley farm where he was then living. He was advised by the assessor that by virtue of the fact that he had only a one-fourth interest in the farm, he could only get one-fourth of the homestead tax exemption. There was testimony introduced by appellants over appropriate objections that the parties went to their Attorney, W. H. Scott, of West Union, Iowa, who advised them to put the full title in Harry G. Todd's name, and that upon his suggestion and upon his advice, Elmer Todd, Thomas C. Todd, and Floyd G. Todd and his wife, Nellie Todd, executed to Harry G. Todd a deed to their interest in this 100 acre farm, which was immediately recorded by Harry G. Todd. This deed appears in the record as Exhibit '11' and was dated December 30, 1937 and recorded within a few days. After the execution of this deed, there was no change in the method of operation of this farm. It was operated by the four brothers as a part of the joint farming operation. Elmer Todd died 25 days after the execution of this deed, leaving a will by the terms of which all of the property was left to his three brothers as joint tenants with right of survivorship. His will was duly admitted to probate and his brother, the appellant Thomas C. Todd, was appointed as executor. The attorney for the executor was the same W. H. Scott who had drawn the deed to the 100 acres to Harry G. Todd, and who was attorney not only for the 'Todd Brothers' partnership but for the individual members thereof and for the Elmer Todd estate and the Harry G. Todd estate and for the widow and children of Harry G. Todd up to the commencement of this litigation. In the proceedings in the Elmer Todd estate, the Huntley 100 acre farm was not listed as an asset nor was there any inheritance tax paid to the State of Iowa on any interest in this real estate. This real estate was not mentioned in any of the proceedings nor in the final report.
There was also testimony that at the time the three brothers conveyed their interest in the Huntley farm to Harry G. Todd that three blank deed forms were signed by Harry G. Todd and left in the possession of Attorney W. H. Scott. In the spring of 1941 the Supreme court of this state in the case of Eysink v. Board of Supervisors of Jasper County, 229 Iowa 1240, 296 N.W. 376, ruled that the owner of an undivided interest qualified for the full homestead tax credit. It is admitted that the appellants and their attorney, W. H. Scott, had knowledge of this decision. Mrs. Nellie Todd testified as follows: 'In 1941 I was informed that the State Tax Commission's rulings with reference to the homestead tax exemption was changed. I knew that Floyd Todd and Thomas Todd also had that same information.' Although Harry G. Todd lived for more than ten years thereafter, he was never asked to reconvey to the parties the undivided interest they had conveyed to him in 1937, nor were the blank deed forms, which he had signed and left with Attorney W. H. Scott, ever completed and used.
During the last seven or eight years of his lifetime, Harry G. Todd was suffering from a heart condition which eventually caused his death on December 8, 1951. Apparently all of the family, including the appellants, were aware of this condition but no effort was made to obtain a reconveyance of their interest in the 100 acre tract. Harry G. Todd left a will which had been drafted by Attorney W. H. Scott on September 27, 1937, the same date that the Elmer Todd will was made, by the terms of which he gave to his wife, Marion Todd (now Marion Todd Reints), a life estate for the term of her natural life, with the remainder to his three daughters, Laura Todd Schroeder, Dorothy Todd (now Dorothy Todd Carpenter), and Elizabeth Todd Bigelow, in equal shares. This will contained the following provision:
'During the lifetime of my said wife, it is my desire and I hereby direct that all of my said property shall be used and operated as it has been during my lifetime, that is, in one unit and under the name of 'Todd Brothers' and in conjunction with the property of my surviving brothers or any of them.' The appellant Thomas C. Todd was appointed as executor of the estate and the same Attorney, W. H. Scott, handled the administration of the estate. In the inventory the executor listed an undivided one-third interest in this 100 acres as an asset of the estate, as well as an undivided one-third interest in all of the rest of the real estate. When the final report was filed, the surviving spouse, Marion Todd, accepted service on behalf of herself and as natural guardian of the minor daughters. In the order of court approving said report and closing the estate, the court decreed:
'That Floyd G. Todd is hereby appointed as trustee to manage and administer the real and personal property of said estate and as directed in final report of said executor, to carry out all of the provisions of said will during the lifetime of the surviving widow.'
The surviving spouse, Marion Todd (now Marion Todd Reints), testified that she relied upon the advice of the Attorney, W. H. Scott, and acquiesced in all the suggestions made by him and upon his advice and recommendations, consented to the appointment of Floyd G. Todd as trustee. She further testified that she had no knowledge of the deed, Exhibit 'H', until shortly before the commencement of this litigation. The widow and the three daughters continued to live on the Huntley place after the death of Harry G. Todd until sometime in March, 1953, when at the suggestion of the appellants, Floyd G. Todd and Thomas C. Todd, they moved to Nashua in order that they might put a hired man on the farm. They first moved into an apartment rented for them by the brothers and later into a house which the brothers purchased for them in Nashua and which was paid for out of the partnership account. The widow testified that all of these arrangements were made by the appellants and that she had no voice in the selection of the apartment or in the purchase of the house. After she moved from the farm, the house was first used by employees of the 'Todd Brothers' partnership until about 1955 when the house was rented by Floyd G. Todd to a stranger for $20 per month and the rent was paid into the partnership account. Following the death of Harry G. Todd, the Huntley 100 acres were operated as part of the partnership farming enterprise, the same as before, and continued to be operated in that way up to the time of commencement of this litigation, and so far as the record discloses, is still being operated in that manner.
All of the testimony in regard to the execution of the deed, Exhibit 'H', on December 30, 1937, and the facts surrounding the same, was introduced over the standing objection that it violated the Deadman's statute and was inadmissible as in violation of the Statute of Frauds.
Under the record, there can be little question but what the Huntley 100 acres were operated at all times up to the commencement of this action as a part of the joint partnership farming venture. None of the individual members had private banking accounts. The account was always carried in the name of 'Todd Brothers', mainly in the Nashua bank but also in a bank in Charles City. None of the partners had any individual property other than their automobiles, which were registered in their individual names. All of the income from the 670 acres was deposited in this partnership account and all of the expenses of the farming operations, as well as the personal expenses of the individual partners, were paid out of this same account. There was testimony that the receipts from the cream checks and eggs on the Huntley farm were kept by Harry G. Todd and his wife, Marion Todd, and not turned into the joint account but were used for their personal living expenses, but that the deficit over and above the receipts from these sources was paid from the partnership account. The record further discloses that Elmer Todd died a single man, that the appellant Thomas C. Todd is a single man, and that the appellant Floyd G. Todd is married but has no children. The decedent, Harry G. Todd, was the only one of four brothers who had any heirs, they being three of the appellees above named. There was never any accounting between the brothers.
In their original petition, appellants described the 670 acres of land and the personal property and alleged ownership to be two-thirds in the appellants and one-third in the appellees. Later appellants filed a second amendment to their petition wherein they alleged ownership in them of a two-thirds interest in the north 160 acres, three-fourths of the south 410 acres, and two-thirds of the 100 acres, and claimed ownership of two-thirds of the personalty and one-fourth of the personalty as belonging to appellees. Later they filed a third amendment changing their claim to ownership in the 100 acres from two-thirds to three-fourths. Still later they filed a fourth amendment to their petition acknowledging the legal title to the 100 acres to be in Harry G. Todd and alleging that the title was held by him in trust and that the appellees were entitled to only one-fourth of the 100 acres. Appellants apparently later abandoned their claim to a three-fourths interest in the 100 acres and are now claiming only a two-thirds interest therein. To all of these pleadings appellees filed in addition to denials, the General Statute of Limitations (614.1), the Special Statute of Limitations (614.17), laches, and the Statute of Frauds, section 557.10 and section 622.32. The same Attorney, W. H. Scott, who represented the partnership and the individual members and the two estates, also prepared the income tax returns for the partnership and for the individuals and for the surviving spouse of Harry G. Todd after his death. In preparing the inventory in the Harry G. Todd estate, there was not listed the interest which he acquired from his brother Elmer. Following Harry's death, there was never any request or demand made on his surviving widow for a reconveyance of the interest which they now claim in the 100 acres. After his death and up to the date of the trial, she had received from the partnership a total of $6,568.75, but no reports of any kind were made to her. Checks were simply left at the bank for her with no explanation. There was evidence introduced on behalf of the appellants that Harry G. Todd during his lifetime, in talking with an adjoining neighbor, referred to the 100 acres as 'mine' and that he was trying to get Floyd and Thomas to give him a certain 80 acres adjoining the neighbor's land to go with his 100 acres.
I. Our first inquiry should be whether or not the deed of December 30, 1937 created a resulting or constructive trust in favor of the grantors, Elmer Todd, Thomas C. Todd and Floyd G. Todd. We find that it did not. No resulting trust arises in favor of the transferor where he transfers his own property without consideration to another. The Supreme court of this state has so held in the fairly recent case of Shaw v. Addison, 239 Iowa 377, 28 N.W.2d 816, 823, where the court said:
'But the rule that a prima facie case of resulting trust is established by showing the consideration moved from the claimant has no application with respect to these transfers for two reasons. In the first place, in both instances the decedent transferred his own property. The rule only has application in the purchase of property where the title moves direct from the seller to one who does not furnish the consideration. There is no rule of law that creates a presumption of resulting trust in transferor's favor when he transfers his own property to another without consideration. The rule is thus stated in Restatement of Trusts, sec. 405:
"Where the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust although the transfer is gratuitous.
"a. The common-law rule that a resulting use arises in favor of a person making a feoffment in fee simple to another where no consideration is paid for the feoffment and where no express use is declared by the feoffer, has not been applied in the modern law of trusts. Where a transfer of property is made without consideration, the inference is that the transferor intends to make a gift to the transferee, not that he intends that the transferee should hold the property for the benefit of the transferor. This is true even though it appears in the instrument of conveyance that no consideration is paid for the conveyance."
A resulting trust ordinarily arises when the seller at the request of the purchaser conveys the title to some third person who pays no consideration. Thus in this case, if Huntley conveyed the title to this 100 acres direct to Harry G. Todd and the consideration was paid out of the 'Todd Brothers' partnership account, there would be no question but what there would be a resulting trust in favor of the members of the partnership. Such was not the case.
We also think there is considerable doubt whether the plaintiffs pleaded a resulting trust. In paragraph 7 of the Fourth Amendment to petition they state:
'That on December 30, 1937, the said owners, Elmer Todd, Thomas C. Todd and Floyd G. Todd, conveyed their legal title in said property to their coowner, Harry G. Todd, the said title to be held in trust by him for their equal benefit. That said conveyance was made without consideration and solely as a matter of business convenience of the said four owners.'
We believe that this is the pleading of an express trust rather than a resulting trust.
II. The manner in which a constructive trust is created is set forth in Restatement of the Law of Trusts, paragraph 44:
'(1) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refused to perform the trust, the transferee holds the interest upon a constructive trust for the transferor, if
'(a) the transfer was procured by fraud, duress, undue influence or mistake, or
'(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or
'(c) the transfer was made as security for an indebtedness of the transferor.'
It may be noted from the above statement of the law that a constructive trust may be created in one of three ways, none of which was present in this case. There was no evidence whatsoever of fraud, duress, undue influence or mistake, nor was there any confidential relation between the grantors and the grantee, nor was the transfer made as security for indebtedness. Consequently, appellants' claim that a constructive trust was created must fail.
III. Consequently, if appellants are to prevail in this case, they must show by competent admissible evidence that an express trust was created at the time of the execution of the deed. The degree of proof to establish an express trust has been many times clearly stated by this court. One of the clearest statements of the rule is found in the case of Sinclair v. Allender, 238 Iowa 212, 26 N.W.2d 320, 327, where this court reviewed the earlier authorities and restated the rule in the following language:
'One of the parties to the transaction being dead the proof should be clear, unequivocal, and without doubt and uncertainty.'
Later in the same opinion, the court restated its prior statement which is particularly applicable to the facts in the instant case, this statement being as follows:
'The proof in such cases, however, we have often held should be clear and explicit, and such as goes directly to prove the facts necessary to create the trust. * * * And when such trust is set up years after its alleged creation and long after the parties thereto have deceased, the proof should be received with the greater caution, and the relief should be granted only upon the most satisfactory evidence. And especially to when there is no circumstance explaining the delay or justifying the party in sleeping on his rights.'
IV. Let us briefly review some of the evidence and see whether or not the proof introduced by appellants measures up to this high standard.
In the first place, the appellants did not claim the existence of any trust until they filed their Fourth Amendment to their petition just a few days before the trial was to commence and almost 20 years after the deed in question was executed and recorded. In their original petition and in their first three amendments, no mention of this alleged trust is made. There may have been many reasons for the execution of this deed other than that claimed by appellants, who claim it was solely for the purpose of obtaining full homestead tax exemption on the 100 acres. It is important to note that Elmer Todd and Thomas C. Todd were single men and that Floyd G. Todd, while married, had no children. Harry G. Todd was the only one of the four who had any heirs. Elmer Todd at the time of the execution of the deed was suffering from an incurable disease and died just 25 days later. He had made a will leaving all of his property to his three brothers in joint tenancy with right of survivorship. His estate was probated and the appellant, Thomas C. Todd, was named as executor and the attorney who drafted the deed in question represented the estate. In preparing the inventory in the Elmer Todd estate, no interest in the 100 acres was listed as an asset of the estate, and no inheritance tax was paid to the State of Iowa on any interest in this land. Appellants claim that this was due to oversight. However, the execution of this deed just 25 days before Elmer's death must have been fresh in the minds of the executor and his attorney when the inventory was prepared. Nowhere in the estate proceedings, either in the final report or elsewhere, is any mention made of the decedent having any interest in this 100 acres.
All of the appellants and their attorney admitted that they learned of the Supreme court's ruling in the Eysink case in 1941. Floyd G. Todd testified on cross-examination:
'I have been informed that on February 18, 1941, the Supreme court of Iowa held that it was not necessary for anyone to have the sole ownership of the real estate in order to get the homestead exemption.'
Likewise Thomas C. Todd testified on cross-examination:
'We knew that the State Tax Commission's ruling with respect to the homestead tax exemption was changed in 1941.'
Nellie Todd testified as follows:
'In 1941 1 was informed that the State Tax Commission's rulings with reference to the homestead tax exemption was changed. I knew that Floyd Todd and Thomas Todd also had that same information.'
The Attorney, W. H. Scott, testified likewise.
There was testimony introduced over standing objection that at the time of the execution of the deed, Exhibit 'H', Harry G. Todd signed three blank deed forms which were left with Attorney W. H. Scott. It was the claim of appellants that these deeds were to be used for the purpose of reconveying their interest in this land. They were never completed and never so used. Attorney W. H. Scott testified over objection that he had foregotten all about them until the trial of this case.
The most significant feature of the whole case is the fact that although Harry G. Todd lived for ten years after the alleged reason for making the transfer had been removed by the ruling in the Eysink case and that appellants were aware of this fact, yet no demand or request was made upon him during his lifetime for a reconveyance of their interest in this land. No explanation or reason for not doing so was made. This becomes doubly important when you take into consideration the fact that the brothers were farming together on adjoining farms and that Harry was ill with a heart condition for seven or eight years prior to his death, which fact was apparently well known by all the members of the family, nor was any request made by the widow and daughters of Harry to make reconveyance following his death. Certainly these facts must be kept in mind when weighing the appellants' evidence. It would certainly seem that if the purpose of the deed was as claimed by the appellants, that some effort would have been made to obtain a reconveyance before the lips of Harry G. Todd had been closed by death.
It would appear that the following language used by the court in the case of Sinclair v. Allender, 238 Iowa 212, 225, 26 N.W. 320, 327, could be aptly applied in this case:
'Testimony of one which cannot be contradicted must be received with caution, carefully weighed, and any reasonable doubts resolved against it. As said by Evans, J., in a similar case, Freeborn v. Servis, 182 Iowa 1350, 1352, 165 N.W. 178, of one in the situation of the plaintiff, who had testified to making all the payments on the purchase price of the property, the spouse being dead:
"Such claim is easily made, and is difficult to disprove. It therefore calls for great scrutiny, and we have considered the claim herein with some scepticism.'
'Plaintiff's testimony has too many improbabilities and inconsistencies that are unexplained. His testimony was equivocal and many times he claimed not to remember matters on cross-examination. On the whole plaintiff's evidence was neither clear, satisfying, nor convincing.'
V. Appellant's claim is largely based upon the fact that the 100 acre tract in question was operated as a part of the entire 670 acre farming enterprise and that there was but one bank account, which was kept in the name of 'Todd Brothers', and that all income from the entire 670 acres and all of the expenses of their farming business, as well as their private expenses, were paid out of this one bank account, together with the fact the taxes, insurance, upkeep and maintenance of the 100 acre tract were paid out of this account, as well as the cost of some permanent improvements that were placed thereon. However the fact that all of this land was operated jointly does not prove that the title to the land was held the same way. As a matter of fact, the title to the land was not so held. While the record is not clear, apparently the north 160 acre farm was purchased after the death of Elmer Todd and was owned by Floyd G. Todd, Thomas C. Todd, and Harry G. Todd in equal shares. After the death of Harry G. Todd, the title to the 410 acres was vested three-fourths in Floyd G. Todd and Thomas C. Todd and one-fourth in the Harry G. Todd family. Notwithstanding this unequal ownership, the income tax returns, which were filed subsequent to Harry's death and which were prepared by Attorney W. H. Scott showed the income from the entire 670 acres being divided one-third to Floyd G. Todd, one-third to Thomas C. Todd, and one-third to Marion Todd, the life tenant of the Harry G. Todd estate. Following the death of Harry G. Todd, the appellants never claimed more than a two-thirds interest in the 670 acres and a two-thirds interest in the personal property up to the filing of the Second Amendment, filed December 10, 1956, wherein they claimed a three-fourths interest in the 410 acres. It would appear, therefore, that the fact that this 100 acres was farmed and operated as a part of the 670 acres, does not establish the existence of the alleged trust and does not meet the standard laid down by law that the evidence must be clear, unequivocal, and without doubt and uncertainty.
The evidence further showed that for the years 1938, 1947, 1948, 1949, 1950 and 1951, Harry G. Todd filed sworn applications for homestead tax credit in each of which he stated under oath that he was the owner of 'NW SW Sec. 21, Twp. 94, Range 15' and that he became the owner of this homestead on December 30, 1937, by the deed recorded in Book 73, page 591, which is the deed in question, Exhibit 'H'. If the appellants' contention is sound, then these sworn applications were false. We believe that they were honestly made and support his ownership to this land. The language in the case of Gregory v. Gregory, 248 Iowa 672, 82 N.W.2d 144, 149, can be applied to this situation. In that case the court said:
'It is doubtful the defendant mother would have permitted her son to falsely represent to the United States Government that he, not she, was the buyer of that property in order to obtain the otherwise unobtainable G. I. loan. It is unlikely that she would permit her son to swear falsely on affidavits of ownership to obtain veteran and homestead exemptions. We prefer to believe they were not made falsely.'
VI. We further think that the evidence of the appellants is weakened by their shifting positions. In their original petition they allege that the ownership of the entire 670 acres and all of the personal property was in thirds. In their Second Amendment they alleged their interest in the north 160 acres to be two-thirds, three-fourths in the south 410 acres, and two-thirds in the 100 acres. In this same amendment they claim two-thirds of the personal property, alleging one-fourth as belonging to appellees and that the remaining interest belonged jointly to all the parties. In their Third Amendment they changed their claim of ownership in the 100 acres from two-thirds to three-fourths. In their Fourth Amendment they admitted legal title to the 100 acres to be in Harry G. Todd and for the first time alleged that he held title in trust and that the appellees were entitled to only one-fourth of the 100 acres.
In their briefs and arguments in this court, appellants made claim to only two-thirds interest in the land involved. We are unable to understand this position. If their contention is correct, they are entitled to an undivided three-fourths interest. Under the record in this case, they were either entitled to a three-fourths interest or nothing, and the trial court was correct in establishing the interests as the record title showed.
Another fact that appears in the record which throws some doubt upon the correctness of the appellants' position: When Elmer Todd died under the terms of his will Harry G. Todd became the owner of an undivided one-third of his property in joint tenancy. When Harry G. Todd died, Thomas C. Todd was appointed as executor and the same Attorney, W. H. Scott, represented the estate. He inventoried an undivided one-third interest in the entire 670 acres and in the personalty. No inheritance tax was paid the State of Iowa on the one-fourth interest which Harry acquired under the Elmer Todd will. It seems unlikely that all of these inaccuracies can be attributed to mere oversight. Then when the Harry G. Todd estate was closed, Floyd G. Todd was appointed as trustee and took over the management of his estate during the lifetime of the widow. He filed no reports as trustee until ordered by the court to do so. We think it is also important to note that the surviving spouse, Marion Todd, testified that she had no knowledge of the deed, Exhibit 'H', until she consulted another attorney in April 1956 to look into the affairs. Up to that time, W. H. Scott had been her attorney and she relied upon him for advice and guidance and followed whatever suggestions he made.
A reading of the entire record further discloses quite clearly that throughout this entire period of time, Floyd G. Todd and Thomas C. Todd were the dominant parties and made all of the decisions in regard to the farming operations. Floyd is sometimes referred to as the 'manager'. This is borne out by the fact that following Harry's death, they suggested she and the girls move to Nashua and that they would rent an apartment for her and later buy her a house. She had no voice in the selection of the apartment or in the purchase of the house. Following her removal from the Huntley farm, Flody and Thomas carried on the business as they saw fit never consulting with the life tenant or her daughters in regard to any of their business affairs. She received no reports of any kind from them. They simply left checks at the bank for her without any reports of any kind. During the period from Harry's death up to the time of the trial, she had received a total of $6,568.75. Whether this represented her full share from the farming operations is not disclosed by the evidence. She had no books or records at the home.
The only evidence in the record as to Harry G. Todd's position in regard to this 100 acre tract came from a neighbor by the name of Fred Schroeder, who testified that about the year 1941 or 1943 he had a conversation with Harry Todd about renting land from him. He testified as follows:
'Q. Where was this now?
'A. I was on my place and he was on his, his across the road on the Todd Brothers 80, and I had to drive my cattle about a mile to pasture, and he knew it, and he said Fred, I am trying to get the boys so I get this 80 to go with mine, and then I will rent you a pasture and you won't have to drive them around the road.
'Q. He referred to his place as mine, did he at that time?
'A. That's right. He said I will try to get that with mine. That 80, the north 80 of the the Todd Brothers at that time. Then he was going to rent me the pasture and I wouldn't have to drive them around.'
Apparently Harry regarded this place as his because he referred to it in this conversation as 'mine'.
VII. It would appear from the foregoing that the learned trial court was correct in his conclusions of law where he stated:
'1. The plaintiffs have wholly failed to prove by competent evidence that title to the 100 acres was held in trust for the benefit of the parties to this action as set forth in Paragraph 11 of the Fourth Amendment to the petition filed September 10, 1957.
'2. That the admissible evidence offered by the plaintiffs failed to establish by clear, unequivocal and satisfactory proof the existence of either an express trust or of an implied trust, resulting or constructive. What weight it possessed was further impaired by the fact that the claims of the plaintiffs were belatedly made.'
He had the oportunity to see the witnesses and observe their demeanor and deportment and in his findings of facts used very strong language in characterizing the evidence of the appellants as follows:
'Much of the evidence offered by the plaintiffs in support of their claims is not sufficiently credible to be worthy of belief. It is replete with inconsistencies. It acknowledges that the deed in question was the result of a deception and deceit to secure a tax advantage which the State of Iowa was not then granting. It acknowledges that the State of Iowa was deprived of inheritance taxes twice by the deed in question if the plaintiffs' claims were sustained. The court finds as a fact that the absolute ownership of the 670 acres of real estate, which is the subject of this action, is now vested in the persons holding the record title as hereinbefore enumerated in these Findings of Fact, notwithstanding the claims of the plaintiffs.'
VIII. In view of the fact that the trial court found that the appellants had failed to establish the existence of either an express trust or of an implied trust, resulting or constructive, he did not find it necessary to pass on the defenses pleaded by appellees of the Statutes of Limitations, both general and special and laches. He simply applies the belatedness of the appellants' claims to the weight of their testimony but does not expressly find that their claims were barred either by limitations or by laches. In view of our ruling that the appellants had failed to prove the existence of any trust, we do not find it necessary to pass on these propositions. We doubt, however, that the Statutes of Limitations would apply to this case as the record shows that from the time this Huntley farm was purchased up until the time of trial, it was farmed by the four brothers until the deaths of Elmer and Harry and by the appellants since Harry's death. We do not find that the appellants were in exclusive possession of this land as claimed in their brief and argument, but we do believe that they were in such joint possession throughout that period to bar the operation of the Statutes of Limitations.
IX. The case of Pap v. Pap, 247 Iowa 371, 73 N.W.2d 742, relied on by appellants, is readily distinguishable from the case at bar. In that case a father deeded 80 acres of land to his son but continued in possession for several years and after he moved off the farm, the son paid him rent. Following the father's death, the son acknowledged the trust by entering into a contract with the other seven heirs for the purchase of the same, which contract he later repudiated. He further acknowledged the trust by inventorying the farm as an asset in the father's estate, he being one of the executors of the estate. The court in that case correctly found that the evidence clearly and convincingly established the existence of an express trust.
X. In view of our finding that the appellants have failed to establish the existence of a trust, we find it unnecessary to pass on the question of whether appellants' claims cannot be asserted in a court of equity because they did not come into court 'with clean hands'. The trial court so held in his conclusions of law, but we do not find it necessary to so find in arriving at a correct determination of the case. We therefore, find that the judgment and decree of the trial court should be affirmed.
Affirmed.
BLISS, WENNERSTRUM, HAYS and LARSON, JJ., concur.
GARFIELD, C. J., and OLIVER, THOMPSON and PETERSON, JJ., dissent.