Argued February 7, 1956.
Decided March 29, 1956.
A bill to impress a constructive trust upon certain real property in favor of the plaintiff could properly be maintained upon evidence establishing that title to the property was transferred by him for the comfort and support of his parents with no consideration and held by them pursuant to an oral promise to reconvey or will it back to the plaintiff, and the parents have failed to perform.
No resulting trust may be imposed in such case since the plaintiff at the time of his purchase of the property took title in his own name.
The conveyance, in such case, from the plaintiff to his parent would create no irrebuttable presumption of a gift.
The statute (RSA 477:17) requiring that trusts concerning lands shall be in writing has no application to trusts arising or resulting by implication of law.
The stated consideration in a deed may be contradicted by evidence that there was no consideration in fact.
BILL IN EQUITY, to impress a trust on certain real estate in the town of Atkinson which the petitioner claims is rightfully hers. Trial by the Court, which granted defendants' motion to dismiss after the testimony of one witness and at the close of counsel's amended opening statement and explanation of the case. The plaintiff's exceptions were reserved and transferred by Grant, J. From the pleadings, exhibits and the record it could be found that the son Arvdis purchased the property subject to a mortgage and subsequently conveyed it without consideration to his father, Sarkis. It was alleged and claimed that prior to the conveyance, the son, his parents and his brothers and sisters lived on the premises as a family, and that after the conveyance they continued to do so, and the son supported his father and mother, made payments on the principal and interest of the mortgage indebtedness and over a period of years made substantial improvements to the property. None of the parties could read and write and there was evidence indicating that the real estate transfer was made to insure the protection and support of the father and mother after the son's marriage to the plaintiff who also came to live on the premises. The plaintiff is the widow of the son. The defendant is administrator d.b.n. w.w.a. of the estate of the father, who devised the real estate in question to the defendant mother for life, with power to sell the same, remainder if any to the son. Other facts appear in the opinion.
Robert Shaw (by brief and orally), for the plaintiff.
Sleeper Mullavey (Mr. Mullavey orally), for the defendants.
Factually this case is quite similar to Bailey v. Scribner, 97 N.H. 65. However, in so far as the plaintiff relied upon a resulting trust, dismissal of her bill in equity was proper since the property was bought by the son and title taken in his name. This is not a case where the consideration was furnished by one person and at that time the title to the property was taken in the name of another. During the trial the plaintiff proceeded on the theory that any improvements to the property at any time became part of the consideration for a resulting trust. That is not the law and was not the case in Bailey v. Scribner, supra, where the labor involved in the care of the beneficiary and the improvements made to the property were "all in pursuance of the understanding of the parties at the time of the purchase." Id., 68. However, it does not follow that the plaintiff is without any remedy.
The facts alleged in the pleadings would support a finding in the plaintiff's favor on the theory of a constructive trust. 1 Scott, Trusts, s. 44.2, states the controlling law: "There are numerous cases to the effect that where at the time of the transfer the transferee was in a confidential relation to the transferor, and the transferor relied upon his oral promise to reconvey the land, he is chargeable as constructive trustee of the land for the transferor. In these cases it is held that the constructive trust will be imposed even though at the time when he acquired the property the transferee intended to perform his promise and was not therefore guilty of fraud in acquiring it; and even though the transferee did not take improper advantage of the confidential relation in procuring the transfer and was not therefore guilty of using undue influence. The abuse of the confidential relation in these cases consists merely in his failure to perform his promise. A constructive trust is imposed even though there is no fiduciary relation such as that between attorney and client, principal and agent, trustee and beneficiary; it is sufficient that there is a family relationship or other personal relationship of such a character that the transferor is justified in believing that the transferee will act in his interest." The defendants' argument that there can be no constructive trust unless there is actual fraud cannot be accepted. 3 Bogert, Trusts, s. 496.
The conveyance from the son to the father raises no presumption of a gift. 2 Bogert, Trusts, s. 460, p. 500. And even in cases where there is such a presumption it may be rebutted. Foley v. Foley, 90 N.H. 281; Shelley v. Landry, 97 N.H. 27. The statute (RSA 477:17) requiring that trusts concerning lands shall be in writing has no application to trusts which "arise or result by implication of law." Early cases (Graves v. Graves, 29 N.H. 129) which hold that the recited consideration in a deed could not be contradicted to show that there was no actual consideration no longer represent the law in this jurisdiction. Rivard v. Ross, 99 N.H. 299, 304; Plante v. Wendell, 95 N.H. 188. See also, 9 Wig. Ev. (3rd ed.) s. 2433; 1 Williston, Contracts (Rev. ed.), s. 115 A.
Since the plaintiff may be able to prove that the property in question was held by the mother and father pursuant to a promise to reconvey or will it to the son, the bill in equity should not have been dismissed. See Restatement, Restitution, s. 182, comment b. Whether the plaintiff can meet this burden can be determined only after his evidence is fully presented. Restatement, Trusts, s. 44, comment c.