Sunderland v. Sunderland

Dillon J.

1. Trust : when it arises. The object of this suit was to establish, respecting the land in question, as against the widow, a resulting trust in favor of the heirs of John H Sunderland, Sr.

It is a well established principle in equity, that where one purchases lands with the money of another, and takes the title to himself, there arises by implication or operation of law, a trust in favor of the owner of the money. Sullivan v. McLenans, 2 Iowa, 437 ; Id., 59; Claussen v. La Franz, 1 Id., 226; Olive v. Dougherty, 3 G. Greene, 371; McGregor v. Gardner, ex'r, 14 Iowa, 326 ; Foote v. Colvin, 3 Johns., 216 ; 2 Washb. Eeal Prop., 177 and authorities cited.

a. — huswife. a If the land had been purchased by the husband, and the title taken by him in the name of his wife, the tion would have been a very strong, if not a conclusive one, as between them, and as between *329 the wife and the heirs of the husband, that it was intended as an advancement and provision for the wife, and not as a trust in favor of the husband. 2 Story Eq. Juris., § 1201 to 1205, where the general doctrine is very clearly stated. See also Kingdon v. Bridges, 2 Vern., 67; Id., 120; Ratcliffe v. Dougherty, 24 Miss., 181 ; 25 Id., 66, 74; Whitten v. Same, 8 Cush., 191 , 200, 1849; Livingston v. Same, 2 Johns. Ch., 537 ; Welton v. Divine, 20 Barb., 9 ,1854 ; 2 Washb. Real Prop., 173, pl. 14, and authorities cited; Marshall v. Pierce, 12 N. H., 127; Brown v. Doe, 7 How. (Miss.) 181; Hill, on Trustees, 99 and notes.)

Now it is obvious, that if a husband permits his wife to use his money to make the purchase in her own name, it is the same thing as if he himself had made the purchase, and caused the title to be made to her. Per Wadlan, Ch. J., Douglass v. Crice, 4 Rich. Eq. (S. C.), 322, 1852, and authorities, supra.)

¿_evl. dence. While a resulting trust may be established by parol evidence, such evidence must be clear, decisive and ¿_evl.dence. factory, or the courts will not disturb the legal tide. Baher v. Vining, 30 Me., 121, 1849.

4,_lapse of time. ■ Long and unexplained delay is a material circumstance against the establishment of implied trusts in real estate, when parol evidence alone is relied upon for . i ♦ this purpose.

■ In view of these reasonable and well founded principles, the decision of the District Court was certainly correct. It lies at the foundation of the plaintiff’s case, to establish clearly and beyond fair doubts, that the money with which the land was purchased was the husband’s, and that the wife used it to enter lands with in her own name, and without his prior authority or subsequent assent. However it might be at law, or. however it might be as respects the creditors of the husband, it is by no means beyond reasonable dispute, that in equity, as between the husband and *330 wife, the money she took away was not hers. She testifies that it was hers, acquired by gift and by her own earnings; that her husband recognized it as hers; never claimed it as his own, and that it was deposited by her in the bank. It seems reasonable to suppose that she had the sole control of it, for it was drawn out of the bank by her. See, on this subject, Stanning v. Style, 3 P. Wms., 337, 1734 (leading case); Wood v. Warden, 20 Ohio, 518, 1851; Welton v. Divine, 20 Barb., 9 , 1854; Whitten, v. Whitten, 3 Cush., 191 , 1849 ; Warren v. Brown, 25 Miss., 66 ; 24 Id., 181 ; see also Logan v. Hall, post.

"What we hold upon this point is, that the plaintiffs have not, under the authorities hereinbefore cited, established, with the requisite certainty and clearness to justify us in divesting the legal title, that the money with which the land in question was entered was, as between the husband and wife, equitably the property of the husband. The testimony of Dickinson, as to the husband’s declaration in the absence of his wife, is not competent, and if it was, it possesses, when closely examined, but little force.

But if it were assumed that the money was the husband’s in such a sense that he could have pursued his wife to America, and have held her as a trustee of this land for him, yet he did not do so, but on the contrary, ratified and adopted her acts. Shortly after the purchase of the land she went back to England, and she and her husband came together to this country, and lived together until his death. Other lands, entered by the wife in her name, were disposed of by the consent and conveyance of both. By the petition it is shown that the husband died seized in his own name of several tracts of land, exclusive of the land in controversy. It does not appear that he ever claimed or called the land in question his. It does appear by the wife’s testimony (the only witness for the plaintiffs who delivered competent evidence on the trial), that the hus *331 band did recognize the land as his wife’s. At the time of her husband’s death, she had, for the long space of nine or ten years, held, with his knowledge and consent, the title to and claimed the land as her own. He never questioned her right, and under the circumstances we do not think part of his children (who are also hers) should be allowed through him, seven years after his death, and seventeen years after the mother acquired title, to claim that which he did not claim, to unsettle that which he regarded as settled, and to stir up in the family the bitter waters of an unseemly litigation.

Affirmed.