Johnson v. Craig , 158 Fla. 254 ( 1946 )

Appeal brings for review decree of partition entered in a suit by one claiming an interest in certain real estate acquired in such manner as to create in the plaintiff and defendant a co-tenancy.

The testimony was taken before, and heard by, the Chancellor and was, in some degree, conflicting and, therefore, in reviewing the decree we must observe the rule stated in Nelson v. State, ex rel. Quigg 156 Fla. 189, 23 So.2d 136.

In the final decree the Chancellor said:

"Defendant takes the position that the transaction by which she acquired title to the real estate in question was solely between the former owner and defendant; that plaintiff contributed nothing to the purchase price thereof; and that there was no intention that plaintiff should have an interest in the lands. The escrow agreement, together with the circumstances of the purchase, demonstrate to the satisfaction of the Court that the real estate was purchased upon the joint credit of both parties and that a resulting trust in plaintiff's favor should be declared to an undivided one-half interest therein. Restatement of Law of Trusts, Vol. 2, Sec. 456; Pomeroy's Eq. Juris. Vol. 4, (5th Ed.) page 77. Title was taken in defendant's name for convenience. Plaintiff had a wife living in Scotland, from whom he had been estranged for many years. It was planned to secure a loan from a lending agency by mortgage on the premises and to get plaintiff's wife to sign the mortgage would have been a difficult, if not an impossible, step.

"The statements subsequently given to the lending agency that plaintiff had no interest in the property, were made for the sole purpose of inducing the agency to accept the mortgage without the wife's signature. These statements do not operate as an estoppel in defendant's favor, because it has not been shown that defendant changed her position or acted in anywise to her prejudice in reliance thereon."

We find that the conclusions reached by the Chancellor are amply supported by the record and that to the facts he applied the correct principles of law and equity.

So, the decree is affirmed.

So ordered.

CHAPMAN, C. J., TERRELL, and ADAMS, JJ., concur.

ON REHEARING GRANTED