In Woodside v. Hewel, 109 Cal. 481 [ 42 P. 152], it was said that "The equitable principle that when, upon the purchase of lands, the consideration therefor is furnished by one person, and the conveyance is taken in the name of another, a resulting trust in the lands is created in favor of the one from whom the consideration came, is well recognized, as is also the rule that a resulting trust is created pro tanto where only a specific part of the consideration was so furnished."Summary of this case from Burns v. Ross
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Stanislaus County. W. O. Minor, Judge.
Property acquired in the name of the husband during coverture is presumed to have been community property at the date of its acquisition, and the rights of the wife therein are extinguished by her death. (Civ. Code, sec. 1401; Moore v. Jones , 63 Cal. 14.) The burden of proving that it was the separate property of the wife is upon the one making the claim, and the claim must be supported by clear and satisfactory evidence. (Morgan v. Lones , 78 Cal. 58; Smith v. Smith , 12 Cal. 216; 73 Am. Dec. 533; Meyer v. Kinzer , 12 Cal. 247; 73 Am. Dec. 538; Ramsdell v. Fuller , 28 Cal. 42; 87 Am. Dec. 103; Huston v. Curl, 8 Tex. 242; 58 Am. Dec. 110; Love v. Robertson, 7 Tex. 6; 56 Am. Dec. 41; Moore v. Jones, supra ; Dimmick v. Dimmick , 95 Cal. 323.) The legal title being in Thomas E. Tynan, the presumption is that he is the absolute owner of the property free from any trust or charge. The law never implies a trust, but in case of absolute necessity. (Cook v. Fountain, 3 Swanst. 585.) The plaintiffs must trace and identify their mother's money into the property. The proof to establish such a trust must be full and convincing. (Lathrop v. Bampton , 31 Cal. 22; Baker v. Vining , 30 Me. 121; 50 Am. Dec. 617-24; 10 Am. & Eng. Ency. of Law, 29-32; Perry on Trusts, sec. 137.)
D. M. Delmas, W. H. Hatton, and L. W. Fulkerth, for Appellant.
J. H. Budd, and L. J. Maddux, for Respondents.
Under the statute in force at the time of the transactions in question, the husband had the management and control of the separate property of the wife, and was by law her trustee. (Stats. 1862, p. 518; Hittell's Gen. Laws, secs. 3568, 3570; Rico v. Brandenstein , 98 Cal. 465; 35 Am. St. Rep. 192.) Having traced the trust funds into his hands as trustee, and shown that it increased his estate, the burden is on him to show what part, if any, was his. (Independent Dist. v. King, 80 Iowa 497; Smith v. Combs , 49 N. J. Eq. 420; Moore v. Jones , 63 Cal. 12; Gunter v. Janes , 9 Cal. 643; Murphy v. Murphy, 80 Iowa 740.) It is not necessary to prove by direct evidence that the particular funds invested were received from the separate estate, but the ultimate fact may be established by circumstances from which it may reasonably be inferred. (Curd v. Williams , 13 Ky. Law Rep. 855; Independent Dist. v. King, supra .)
JUDGES: Harrison, J. Van Fleet, J., and Garoutte, J., concurred.
In 1862 Thomas E. Tynan married the widow of Eli E. Marvin, and they lived together as husband and wife until her death in 1881. At the time of their marriage Mrs. Marvin was the owner of certain real estate in Stanislaus county, and also of a hotel and ferry which were conducted by her at Empire City, in said county, and Tynan was a practicing physician in that county, and also the owner of certain real estate therein. During the marriage certain real and personal property was purchased in the name of Dr. Tynan, and after the death of his wife he purchased other property in the city of Modesto. The plaintiffs are the children of Mrs. Marvin by her former husband, and, at the death of their father, became the owners of one-half of his estate, which they subsequently conveyed to their mother. In 1892 they brought the present action against Dr. Tynan for a conveyance to them of the property purchased by him after his marriage with their mother, as well that purchased before her death as subsequent thereto, alleging that it had been purchased with the proceeds of her separate estate, and was held in trust by him. Tynan answered the complaint, denying these allegations, but before the case came on for trial he died, and his executor was, upon his own motion, substituted as defendant. The court found: "That three-fifths of the purchase price of each of [certain described parcels of land], was furnished from the rents, issues, and profits of the separate property of Mrs. Tynan, and the same were invested by her husband therein as her agent and trustee, and as the agent and trustee of the plaintiffs," and rendered judgment that the plaintiffs are the equitable owners of an undivided three-fifths of the property. From this judgment and an order denying a new trial an appeal has been taken.
The theory upon which the plaintiffs seek to maintain this action, both in their complaint and by the evidence presented at the trial, is that, inasmuch as the consideration for the purchase of the land was moneys belonging to their mother, or to her estate, a resulting trust was created in her favor, which they, as her heirs at law, are entitled to assert against Dr. Tynan, and that at the commencement of this action the property so purchased was held by him in trust for them to the extent that the moneys of their mother contributed to the purchase. The equitable principle that when, upon the purchase of lands, the consideration therefor is furnished by one person, and the conveyance is taken in the name of another, a resulting trust in the lands is created in favor of the one from whom the consideration came, is well recognized, as is also the rule that a resulting trust is created pro tanto where only a specific part of the consideration was so furnished. It is also a familiar rule that it is incumbent upon him who would claim that a trust exists in his favor to establish the fact by clear, convincing, and unambiguous testimony; that the presumption that the person in whose name the legal title to land is vested is the absolute owner thereof is not to be overcome by surmise or conjecture, or by any evidence that fails to afford satisfactory proof of the fact to the tribunal before which it is presented; that it is essential that one who would claim an interest in real property by reason of having paid the consideration for its purchase must show that such payment was made at or prior to the time the purchase was made, and for the purpose of making the purchase; and that, if he would claim an interest pro tanto according to the proportion of the consideration furnished by him, he must show the precise amount paid by him, as well as the amount for which the purchase was made, in order that the court may determine the respective rights of the parties [42 P. 153] in the property purchased. The presumption of ownership arising from the legal title will not be overcome unless the interest of the claimant can be determined; and the testimony presented in support of the equitable claim must clearly show, not only the existence of the trust, but also the extent to which the property is held in trust; otherwise the legal title will prevail. "The trust must have been coeval with the deed, or it cannot exist at all. After a party has made a purchase with his own moneys or credit, a subsequent tender or even reimbursement may be evidence of some other contract, or the ground for some other relief; but it cannot, by any retrospective effect, produce the trust of which we are speaking. There never was an instance of such a trust so created, and there never ought to be, for it would destroy all the certainty and security of conveyances of real estate. The resulting trust, not within the statute of frauds, and which may be shown without writing, is when the purchase is made with the proper moneys of the cestui que trust, and the deed not taken in his name. The trust results from the original transaction at the time it takes place, and at no other time, and it is founded on the actual payment of money, and on no other ground." (Botsford v. Burr, 2 Johns. Ch. 15.) "There is no doubt that payment of part of the purchase money will create a resulting trust to the extent of that payment, but the amounts paid by the different parties must be shown with certainty, and a resulting trust will not be held to arise upon payments made in common by the one asserting his claim, and the grantee in the deed, when the consideration is set forth in the deed as moving solely from the latter, unless satisfactory evidence is offered exhibiting the portion which was really the property of each; and establishing the fact that the payment was made for some specific part or distinct interest in the estate." (Cutler v. Tuttle , 19 N. J. Eq. 561.) "There must be no uncertainty as to the proportion of the property to which the trust extends." (Olcott v. Bynum, 17 Wall. 59. See, also, White v. Carpenter, 2 Paige, 240; Baker v. Vining , 30 Me. 127; 50 Am. Dec. 117; McGowan v. McGowan, 14 Gray, 119; 74 Am. Dec. 668; Reynolds v. Morris, 17 Ohio St. 510; Robles v. Clarke , 25 Cal. 326.) "To follow money into land and impress the land with a trust, the money must be distinctly traced and clearly proved to have been invested in the land. The conversion of the trust money specifically, as distinct from other money of the trustee, into the property sought to be subjected to the trust must be clearly shown. It does not suffice to show the possession of the trust funds by the trustee, and the purchase by him of property -- that is, payment for property generally by the trustee does not authorize the presumption that the purchase was made with trust funds." (Ferris v. Van Vechten , 73 N.Y. 119; Phillips v. Overfield , 100 Mo. 474.)
Tested by these principles, the evidence in the present case fails to sustain the finding of the court, that three-fifths of the purchase price of the property set forth therein was furnished from the separate estate of Mrs. Tynan. This property may be divided into three classes -- that purchased by Dr. Tynan in the lifetime of his wife; that purchased by him after her death; and certain personal property in his possession at the commencement of the action. Bearing in mind that it is to be presumed that the property purchased during the existence of the marriage was community property, and that upon the death of his wife it vested absolutely in him, it was necessary for the plaintiffs, in order to overcome this presumption, to show that the whole, or some definite portion of the consideration for the property purchased by him, came from the separate estate of their mother, by more clear and satisfactory evidence than would have been required had he not sustained that relation at the times of the several purchases. The property in the city of Modesto was all purchased by him after her death, and there is an entire absence of evidence tending to show that any portion of her estate was invested in these lands.
The plaintiffs themselves were the chief witnesses in support of their claim, one of whom was seven years of age and the other five, at the time of their mother's marriage to Dr. Tynan; and the testimony given by them consisted chiefly of their remembrance of conversations between him and their mother, and of acts which they had witnessed. They were unable to specify any sum of money that had been given by their mother to Dr. Tynan for the purchase of land, or to designate any parcel of land purchased by him for which a portion of the purchase money had been furnished by her. The Hardscrabble place was the only purchase which they identified as having been made by him, or for which any specific sum of money came from their mother, and in reference to this purchase Mrs. Woodside testified: "The next purchase I remember was the Hardscrabble place. He wanted to get forty dollars from mother. She objected to giving him the money, but finally she gave it. He said afterward he paid for the land. How much besides that forty dollars he contributed I do not know." There is no evidence showing that this purchase was made on behalf of the mother, or even with her consent, and the testimony concerning her giving the money, even if it be admitted that the money so given was her separate property, is quite as consistent with considering it a loan to her husband as to consider it a part of the consideration contributed for the purchase. The amount of the purchase price is not given, and the witness said that she did not know what it was. With reference to another purchase she testified: "He made this remark -- that he borrowed some money to buy a piece of land on this side of the river, and he told me it [42 P. 154] took all he and mother could save from both places to pay for it." Whatever land was purchased upon the credit of Dr. Tynan was community property, and did not cease to be such by reason of a subsequent payment of the loan with money furnished by his wife. With reference to the purchase from Mrs. Kincaid, she testified: "I don't know how much was paid for it, nor to whom. Mrs. Kincaid was at the house. She came to sell the land. The doctor did not have sufficient to pay for it, and he asked mother for it. Mother came out of her bedroom. She handed her purse to the doctor. She contributed by handing her purse to him. I understood she gave the money to contribute toward the purchase price." It is unnecessary to recite the evidence in regard to other purchases, as it is all of similar tenor, and in no part of the record is there any evidence which will sustain the aforesaid findings of the court.
In this finding the court seems to have acted upon the theory that the several purchases of land by Dr. Tynan were in furtherance of a common purpose between him and his wife, whereas there is no evidence which tends to establish such common purpose; and, in the absence of such evidence, each purchase is to be regarded as a distinct and separate transaction. The record fails to show the amount of money which was paid for any single parcel of land purchased, the only evidence in that respect being the consideration recited in the deeds, and with reference to many of the parcels of land there is no testimony of the circumstances under which they were purchased.
The court also found that Dr. Tynan employed the separate funds of his wife to the extent of three-fifths of the purchase price thereof in purchasing certain farming utensils and other personal property, and stock in the Grangers' Bank, and rendered judgment awarding to the plaintiffs an undivided three-fifths therein, and in "all other property acquired by him after July 27, 1862, and which at the time of the commencement of this action stood in his name." This finding is challenged by the appellant as unsupported by any evidence, and counsel for respondents have not cited us to any part of the record in which the finding is sustained, nor have we been able, upon a thorough examination thereof, to find any evidence in the record of the purchase of any of this personal property or of the circumstances under which it was made. It was not shown that Dr. Tynan did not have the means with which to make the several purchases; and, in the absence of evidence to the contrary, it must be assumed that they were made with his own funds, and that he intended them for himself alone.
The judgment and order are reversed.