Opinion
No. 37590.
October 16, 1950.
1. Trusts — express trusts — resulting trusts — writing, when and when not required.
Express trusts must be in writing but resulting trusts need not be in writing.
2. Resulting trusts — purchase of land in name of another, the purchaser furnishing the money.
If one buys land in the name of another and pays the consideration therefor the land will be held by the grantee in trust for the benefit of him who advances the purchase money and if there has been only a partial advance of the purchase money a trust will result pro tanto; so that when one brother had advanced one-half the purchase money for certain mineral interests to another brother under an oral agreement that the title should be taken in the names of both as grantees, but contrary to the agreement the title was taken in the name of one of them only, the latter held a half-interest as trustee in a resulting trust for the benefit of his brother first mentioned.
3. Statute of limitations — trusts — cestui que trust in army.
The period of time during which the cestui que trust was on active duty in the army is to be deducted from the period which otherwise would have barred a suit to enforce a resulting trust. Sec. 269 Code 1942; Soldiers' and Sailors' Civil Relief Act of 1940; 50 U.S.C.A. Sec. 501, et seq.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Hinds County; V.J. STRICKER, Chancellor.
Sivley Rhodes, for appellant.
Tighe Barksdale, for appellee.
I. Appellee's action is one in equity seeking to have a resulting trust declared in her favor and not an action based on an oral contract for the sale of land. Tanous, et al. v. White, et al., 186 Miss. 556, 191 So. 278.
II. Allegations of the original bill of complaint are sufficient to establish a resulting trust. 54 Am. Jur., Trusts, Sec. 193, p. 152, Sec. 208, p. 612, Sec. 598, p. 464, Sec. 214, p. 165, Sec. 233, p. 178.
III. Resulting trust pro tanto. 54 Am. Jur., Trusts, Sec. 216, p. 166; Bush v. Bush, et al., 134 Miss. 523, 99 So. 151.
IV. The bill does not allege an express trust. Sec. 269, Code 1942; Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661.
Appellee is sole beneficiary in the last will and testament of T.A. Chichester, deceased. Her bill of complaint alleges that T.A Chichester, prior to June 4, 1937, advanced $250.00 to his brother, R.R. Chichester, who, pursuant to an oral agreement theretofore made, also furnished $250.00, and for a total consideration of $500.00 purchased on said date certain mineral interests, but took title in his own name contrary to an agreement that the title should be taken in the names of both. The bill prays for adjudication that complainant (appellee) is the owner of a one-half interest in the minerals so purchased. Attached as exhibits to the bill were copies of letters from appellant evidencing this transaction.
A demurrer was filed raising the ten years statute of limitations and was sustained.
The bill was then amended charging that T.A. Chichester was on active duty in the U.S. Army from May 21, 1941, to the date of his death on July 1, 1945, and further charging that because of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. Appendix, Section 501 et seq. the running of the statute was suspended and the time thereof extended. To this amended bill a demurrer was filed and overruled. An appeal was granted to settle the controlling principles of the case.
Appellant contends that the court erred in overruling the last demurrer. His argument is that the bill alleges an oral contract for the sale of land and further that it is an attempt to establish an express trust contrary to Sec. 269 of the 1942 Code.
In our opinion appellant's contention is not well taken. The case does not involve an oral contract for the sale of land, and while the first portion of said Section 269 does require that all express declarations or creations of trust shall be in writing, the latter portion thereof provides "but where any trust shall arise or result, by implication of law, out of a conveyance of land, such trust or confidence shall be of the like force and effect the same as it would have been if this statute had not been passed." This Court has repeatedly held that (Hn 1) express trusts must be in writing but that resulting trusts need not be in writing. A concise statement of the applicable law is found in Bush v. Bush, 134 Miss. 523, 99 So. 151, 152, where it is said: "Cases involving questions of resulting trusts have often been before this court. The following principles are recognized and declared by this court: (Hn 2) If one buys land in the name of another and pays the consideration therefor, the land will be held by the grantee in trust for the benefit of him who advances the purchase money; and if there has been only a partial advance of the purchase money a trust will result pro tanto. The foundation of the trust in such cases is that the property really belongs to him whose funds have paid for it."
See also 54 Am. Jur., Trusts, Secs. 208, 216 and 598, and Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346.
We are of the opinion that the amended bill states a perfect case of resulting trust and that the action of the chancellor in overruling the demurrer thereto was correct.
Affirmed and remanded.