Opinion
15710
February 6, 1945.
Before G. DEWEY OXNER, Judge, Pickens County, January, 1944. Affirmed.
Action by W. Banks Meacham against P.C. Higginbotham and Wife, and Eloise V. Sloan, to set aside a deed executed by Eloise V. Sloan to Nita Woodward Higginbotham. Plaintiff alleged that he, the Plaintiff, furnished the money for the purchase of the property described in the deed and entrusted said money to P.C. Higginbotham with directions to pay the purchase price and have deed of property made to Plaintiff, but that said Higginbotham, in breach of said trust did fraudulently have said deed made to his Wife, the said Nita Woodward Higginbotham. From Judgment for Plaintiff, P.C. Higginbotham and Nita Woodward Higginbotham appeal.
The Circuit Order of Judge Oxner, ordered to be reported, follows:
Plaintiff seeks to have set aside and declared null and void a certain deed executed by the defendant Eloise V. Sloan to the defendant Nita Woodward Higginbotham. Plaintiff alleges that he furnished the consideration for the purchase of the property described in said deed and entrusted said money to defendant P.C. Higginbotham, with the direction to pay for same and have deed made to the plaintiff. Plaintiff further alleges that the defendant P.C. Higginbotham. in breach of said trust, fraudulently had said deed made to his wife, the defendant Nita Woodward Higginbotham. The Higginbotham defendants interposed a demurrer to said complaint and filed an answer. In their answer, the Higginbotham defendants allege that defendant P.C. Higginbotham paid full value for said property and deed was made to his wife, in accordance with the exact understanding and intention of all the parties. Said defendants further allege that they have been since that time in possession of said property, occupying same and making improvements thereon at considerable expense.
This case was referred to the Master for Pickens County to take the testimony only. Voluminous testimony was taken by the Master and a vast number of exhibits were filed along with said testimony.
When the case came on for argument before me, and before oral argument was commenced, I expressed to counsel considerable apprehension as to whether the real issues in this case were raised by the pleadings. On the other hand, the Court questioned the form of relief sought by the plaintiff. On the other hand, the Court suggested that the testimony was almost undisputed to the effect that the plaintiff paid the consideration for said property and the cost of all improvements made thereon. Counsel thereupon suggested certain amendments to the pleadings which they would like to make so as to have the pleadings conform to the proof. The attorneys further stated that in order to avoid undue delay, they would like to have this case determined on its merits and have the real ownership of said property determined without reference to the technical state of the pleadings. It was agreed that instead of amending the pleadings, I should state in this order the respective contentions of the parties and the pleadings would be considered as amended in the particulars stated.
Plaintiff now contends that he furnished the entire consideration for the property described in said conveyance, together with all improvements made thereon, and that the defendant P.C. Higginbotham, acting for him in the transaction, fraudulently had the conveyance made to his wife, instead of to the plaintiff, as it should have been.
Plaintiff further contends that if the proof fails to disclose fraud as alleged, in any event, the proof shows that the consideration for said property and improvements was furnished by him, which would result in Mrs. Higginbotham holding the property in trust for him, and that the Court should require the reconveyance by her to him. In other words, the plaintiff contends that in any event there was resulting trust in his favor.
The Higginbotham defendants vigorously deny that there was any fraud, or wrongdoing, on their part. On the contrary, said defendants contend that the conveyance was made to Mrs. Higginbotham at the direction, and with the knowledge and acquiescence, of the plaintiff, and that said deed was executed to her in exact accord with the agreement and understanding of all parties. The Higginbotham defendants contend that this understanding was that the property was to be deeded to Mrs. Higginbotham, with the understanding that the plaintiff was to have a right to use and occupy said property during the lifetime of the plaintiff.
The Higginbotham defendants further contend that by reason of the conduct of the plaintiff, as shown by the testimony, he is now estopped to attack the agreement as made, or to charge fraud, as alleged.
As I view this case, the defendant Eloise V. Sloan is not concerned with this controversy, and the issues are made between the plaintiff and the Higginbotham defendants.
For fear that I might inadvertently misstate the respective positions of the parties, the foregoing portion of the order was dictated in the presence of counsel, who stated that the statements made by me were in accordance with their understanding.
It is unfortunate that the facts in this case were not passed upon by a referee, or Master, who had the opportunity of seeing and observing the witnesses. I am greatly handicapped in undertaking to pass upon these sharp issues of fact without the benefit of a report.
While in view of the conclusion hereinafter reached, it is not necessary for me to pass upon the issue of fraud, in fairness to defendants, I think I should state that, in my opinion, the greater weight of the evidence does not sustain the contention of fraud.
It is undisputed that the funds to purchase this property and to make the improvements thereon were furnished by the plaintiff. It is well settled that the law implies a trust in favor of such person paying the purchase money, when the legal title is conveyed to a third person, even with the knowledge and consent of the party making the payment. Of course, the doctrine of resulting trust is founded upon the presumed intention of the parties and that intention must be determined from all the facts and circumstances existing at the time of the transaction. This presumption of resulting trust does not arise where it is contrary to the intention of the parties. The presumption may be rebutted and the actual intention of the parties shown. But it would appear that the burden is upon the defendants to remove this presumption. This I do not feel the defendants have done.
I shall not undertake to review the testimony in this case, as the pressure of my duties does not afford me an opportunity of doing so. I have read this entire record twice. I am satisfied that the plaintiff did not intend to divest himself of the incidence of ownership of this property. Undoubtedly, there was a close relationship existing between these parties and each had the greatest admiration and affection for the other. Had the difficulty between them not arisen, it may be true that the plaintiff would have ultimately given this property to the Higginbothams and would not have asked for a reconveyance, but a consideration of all the circumstances leads me to the conclusion that up to now he has not parted with his ownership. In view of various statements which he probably made to the Higginbothams and to others, Mr. and Mrs. Higginbotham may have received the impression that he intended to give them this property.
It is true that Mr. Higginbotham contributed considerable time to supervising the construction of the improvements when the plaintiff was away, but I think this was done without expectation of compensation, and if compensation was necessary the defendant received same in the way of enjoyment of the property, along with the plaintiff. It must be further remembered that prior to this, the plaintiff, under the undisputed testimony, had been very generous indeed to the Higginbothams.
The plaintiff has had a rather unusual life since he discontinued active work. The testimony discloses that he is very eccentric in many particulars, but a careful consideration of all of his testimony fails to substantiate some of the charges made by the Higginbothams. On the other hand, the testimony convinces me that many of the charges made by the plaintiff against the Higginbothams are untrue. As frequently happens, when a case of close friendship of long duration abruptly ends, it is so easy for each of the parties to make unnecessary and extravagant charges against the other.
Much has been said of the financial dilemma which the plaintiff was in when he left Asheville, but the testimony fails to show with any degree of accuracy the present financial status of the plaintiff with the Asheville banks. I seriously doubt whether the plaintiff himself knows what his situation there is. The defense is not made that this deed was made to Mrs. Higginbotham with the intention on the part of the plaintiff to hinder and defraud his creditors, but it is argued that this is a circumstance which I should consider in determining the true intent of the parties.
There was considerable emphasis placed on the conduct of the plaintiff in defending an action for a mechanic's lien which was instituted in Pickens County. But it must be remembered that whatever action was taken in defense of this suit was acquiesced in by the Higginbothams and both said defendants and the plaintiff are in pari delicto.
The fact, if it is a fact, that the plaintiff intends to ultimately convey this property to one of his nurses is one that cannot be properly considered in the determination of the issues. One of the incidences of ownership of property is to convey it to whom the grantor please, subject to certain limitations which are not here involved.
It was argued by defendants that there was a moral obligation on the part of the plaintiff toward the Higginbothams. It is true that he regarded them almost as a member of his family, but I fail to see any basis for any moral obligation on the part of the plaintiff. Certainly, in view of the previous generosity of the plaintiff, the Higginbothams are hardly in a position to complain of any lack of generosity on his part. The question narrows itself simply to whether the defendants have shown that the plaintiff intended to and did give to them this property. On this clear-cut issue, I think the testimony fails to sustain the contention of the defendants.
In conclusion, if the understanding was as contended for by defendants, they certainly failed to incorporate same in the deed which was executed. Moreover, while amendment of the pleadings has been allowed, the fact that originally the defendants contended that they had paid for this property is a circumstance which can properly be considered in passing on the issues involved.
I find no basis for the contention of defendants as to estoppel.
It is, therefore, ordered that the property in question is held by the defendant Mrs. Nita Woodward Higginbotham, in trust for the plaintiff, and that Mrs. Higginbotham has no interest therein.
It is further ordered that the defendant, Mrs. Nita Higginbotham, do, within thirty days after the notice of the filing of this order, convey said property to the plaintiff, and if she fails to do so, the Clerk of Court of Pickens County shall execute a deed conveying said property and all right, title and interest therein to the plaintiff.
Mr. B.F. Martin and Messrs. Love Thornton, all of Greenville, S.C. Counsel for Appellants, cite: As to Constructive Trusts: 30 C.J., 169-170, 106 S.C. 386, 391, 91 S.E., 286; 1 Pom. Eq. Jur., 1905 Ed., Sec. 155, at pp. 178-179; 200 S.C. 279, 20 S.E.2d 741, Syll. 9 and 11, and pp. 299-300 of S.C. Rep. As to Resulting Trusts: 56 S.C. 78, 83, 34 S.E., 22; 93 S.C. 350, 454, 77 S.E. 129; 39 Cyc., 105, 19 S.C. 126, Syll. 1; 23 S.C. 250, Syll. 5 and pp. 265-267: 200 S.C. 279, 20 S.E.2d 741, Syll. 1. As to Burden of Proof: 200 S.C. 279, at pp. 306-307, 20 S.E.2d 741; 65 C.J., 440; 169 S.C. 41, 168 S.E., 143, Syll. 18; 146 S.C. 322, 327, 144 S.E., 66, citing 22 C.J., 69. As to Presumptions: 4 Wigmore, Secs. 2487, 2488, 2489 and 2491; Greenleaf, 16th Ed., Sec. 14W, pp. 93, 94, 98, 99 and 102; 203 S.C. 318, Syll. 5 and pp. 329, 331; 26 S.E.2d 835; 169 S.C. 41, 168 S.E., 143; 219 U.S. 35, 31 S.Ct., 136, 138, 55 L.Ed., 78, 49 S.Ct., 445, 447, 279 U.S. 639.
Mr. W.C. Mann, of Pickens, S.C. and Mr. Wilbur Hicks, of Greenville, S.C. Counsel for Respondent, cite: As to Gifts: 3 Strob. Eq., 371; 28 C.J., Gifts, 623, 624; 52 S.C. 371; 38 S.C. 173, 17 S.E., 452; Bail. Eq., 141; 4 McCord, 251; 105 S.C. 459, 90 S.E., 34; Knott McCord, 237; 119 S.C. 12, 111 S.E., 725; 138 S.C. 86, 135 S.E., 643; 22 S.C. 314; 130 S.C. 265, 126 S.E., 34. As to "Intention": 90 S.C. 332, 333.
February 6, 1945.
A detailed discussion of the testimony in this case would be of no value to future litigants, and of course the parties to this action are familiar with all of the facts surrounding the transaction out of which this litigation arose.
We have read with care the record, the greater portion of it twice; and it is our considered opinion that the order of the learned Circuit Judge (now an Associate Justice of this Court) reached the equitable and correct result irrespective of where the burden of proof lies. Let the said order be reported.
Affirmed.