Opinion
October 8, 1954 —
November 9, 1954.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Judgment vacated; order modified.
For the appellant there was a brief by Arthur, Dewa, Nestingen Tomlinson of Madison, and oral argument by Ray A. Tomlinson.
For the respondent there was a brief by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by W. L. Jackman.
This suit in equity by Anthony Masino against Mary Sechrest was begun June 24, 1952. The case being reached for trial, the defendant objected to the admission of any evidence, and the trial court ruled that the complaint does not state facts sufficient to constitute a cause of action. Plaintiff was granted the privilege of serving an amended complaint within twenty days upon the usual terms as to costs. Plaintiff not having availed himself of the privilege of amending the complaint, judgment dismissing the action was entered April 24, 1954.
There is an attempt to plead two causes of action. The plaintiff and the defendant are brother and sister. In the first cause of action the following allegations appear:
"2. That on or about the 15th day of September, 1948, a vacant lot facing Bowen court in the city of Madison, in said county and state and more specifically described as lot 17, block 1, Murphy's replat of blocks 1, 2, 3, Greenbush addition to the city of Madison, was purchased by warranty deed and recorded . . . in the name of the said defendant by the plaintiff, Anthony Masino, who paid full and good consideration therefor; . . .
"3. That at all times the said defendant, Mary Sechrest, was fully aware of the position of trust reposed in her by said plaintiff; that the defendant knew and was fully aware that good title to the described property vested in and was claimed by the said Anthony Masino. . . .
"4. That the subsequent action of the said defendant, Mary Sechrest, in claiming title to the described property is an abuse of the confidence reposed in her by the said plaintiff, constituting unconscionable conduct which in equity and good conscience said defendant should not be permitted or allowed to enjoy; . . ."
In the second cause of action, it is alleged:
"1. Incorporates herein as if herein fully set forth, all of the allegations contained in parts I and II hereof.
"2. That at the time the deed of title to the property hereinbefore described was entered into, it was fully understood by the said defendant that the title to and ownership of said property was in fact in the plaintiff herein; that the consideration paid by the said plaintiff in purchase of said property is far in excess of sums expended, if any, by the said defendant; that the apparent claim, or claims to the title of said real property which the defendant has of record under the deed described in paragraph 2 of part II hereof are in law and fact subordinate to the interests of the plaintiff herein.
"3. That the interests and equities of the said plaintiff and the defendant hereto should be determined; that the deed of conveyance to said property should be set aside in the interest of equity and justice to the party hereto, and declared to be a mortgage and title to said property determined."
Upon the foregoing allegations, plaintiff seeks first to create a constructive trust in favor of the plaintiff on the grounds of unconscionable conduct on the part of defendant resulting in her unjust enrichment. Secondly, on the separate and alternative cause of action, in the event the plaintiff does not prevail on the first cause of action, plaintiff seeks to have the deed described be declared to be a mortgage, in fact, and to have the interest and the equities of the parties be determined and an accounting to be had pursuant to the demands of justice and equity. Upon the entering of a judgment of dismissal, the plaintiff appeals.
This case came on for trial below and was submitted and argued here in connection with the appeal of Masino v. Sechrest, ante, p. 101, 66 N.W.2d 740. Here the appellant, in his first cause of action, attempts to allege facts of wrongful conduct on his sister's part which would raise a constructive trust. The facts alleged, at most, must be interpreted to mean that appellant and respondent are brother and sister, and that appellant had the legal title to certain land purchased by him put in his sister's name. There is nothing to suggest any fraudulent inducement by his sister to cause him to have the property transferred in the manner in which it was transferred, nor is there any allegation of facts or circumstances "instinct with an obligation" on her with respect to constructive trust. The facts alleged do no more than show what is at common law a purchase-money resulting trust, which is inoperative in this state because of sec. 231.07, Stats., for "It is only the common-law trust for the benefit of an individual from whom the consideration for a grant issues, and resulting from the fact of payment of the consideration, and having no other foundation, that the statute abolishes." Carr v. Carr, 52 N.Y. 251, 260.
A reading of the complaint shows no facts which may be described as "essential extrinsic equities" necessary to constitute a constructive trust. There is nothing in the way of circumstances that may be used to establish the holder of the title as a constructive trustee. There must be more than a transfer of property. There is no claim of a promise in words, and none arises from the set of circumstances pleaded, to show an obligation assumed by respondent. The first alleged cause of action does not, therefore, plead a lawful or equitable resulting trust nor a constructive trust, and the dismissal of the complaint as to the first cause of action must be affirmed.
As to the second cause of action, we are of the opinion that the statement is deficient in that it does not advise the court or the opposing party as to what contract or set of circumstances the plaintiff bases his claim that the deed should be declared to be a mortgage. The allegations do not show that plaintiff borrowed any money from his sister. We are of the opinion that the objection raised as to the sufficiency of this second cause of action was properly sustained by the court below.
The court was required to determine the nature of the causes of action intended to be set forth, and for that purpose material allegations must be presented. The complaint is required to state in plain and concise language the ultimate facts constituting a cause of action, sec. 263.03(2), Stats. The rulings of the trial court referred to herein are sustained because of the defectiveness of the pleading, and the order granting plaintiff the opportunity to plead over was all that he was entitled to under the circumstances. By the Court. — Judgment appealed from vacated, and order granting leave to plead over modified so as to extend the time for plaintiff to serve and file an amended complaint within twenty days after the filing of the remittitur from this court. Respondent is to have her costs.