Wacasey v. Wacasey , 256 S.W. 1020 ( 1923 )

The plaintiff in error first predicates error upon the overruling of a general demurrer to the petition of the defendant in error, upon the ground that the petition does not allege facts showing a resulting trust or creating an express trust. The allegations, in effect, are that J. W. Wacasey collected and held in his possession the sum of $2,197.30, which was the balance of the community funds owing to the estate of Bess Wacasey and her deceased husband, Alfred V. Wacasey, and belonging to Bess Wacasey and her minor son, and that he "invested said balance for these plaintiffs in 58.85 acres and procured the deed in the name of J. W. Wacasey." If it be true, as alleged, that J. W. Wacasey collected $2,197.30 of the funds belonging to the plaintiffs, and purchased 58.85 acres of land with it "for these plaintiffs," and took the conveyance in his own name, equity would in such a case deem the land to be held as a resulting trust for the plaintiffs beneficially entitled thereto. Long's Adm'rs v. Steiger, 8 Tex. 460; Burns v. Ross, 71 Tex. 516, 9 S.W. 468; 3 Story, Equity Jurisprudence (14th Ed.) § 1597; 39 Cyc. p. 150; 26 R.C.L. § 73, p. 1227. We think it was not error to overrule the demurrer.

The plaintiff in error next assails the sufficiency of the evidence to engraft a trust upon the tract of land in favor of Bess Wacasey and her minor son. The proposition is that the evidence is too vague, uncertain, and indefinite, and does not legally discharge the burden of proof upon the defendant in error to establish a resulting trust as alleged. The petition does not allege an express trust, which must exist, if at all, either by express agreement or by the direct and positive acts of the parties by some writing or deed. It is the settled rule that to create a resulting trust the consideration must be paid and the trust arise at the very time the title is acquired. Parker v. Coop, 60 Tex. 114; Gardner v. Randell, 70 Tex. 453, 7 S.W. 781; O'Connor v. Vineyard, 91 Tex. 496,44 S.W. 485. And in order to establish a resulting trust by parol evidence, as against the holder of the legal title to property, the proof of all the essential facts and circumstances must, as a general rule, be clear, convincing, and satisfactory. Goodrich v. Hicks, 19 Tex. Civ. App. 528,48 S.W. 798; 39 Cyc. p. 166. In view of these settled rules, and after having carefully looked through the whole of the evidence, we have come to the conclusion that the proposition of the plaintiff in error should be sustained. It is the contention of Bess Wacasey, as shown by her testimony, that after the death of her husband in December, 1918, J. W. Wacasey sold all the property, real and personal, and realized therefrom, after paying incumbrances, $2,197.30, and that he "wanted to borrow the money for one year, and he borrowed it for one year." The loan was made in January, 1919, for one year. She admits that "at the end of that year he paid me the interest on it for one year." Further, she definitely fixes the time when J. W. Wacasey offered "to invest my money in land" at the time "after he paid me the interest for that year" and "after they sold their place, their home in Clarksville." The home in Clarksville was not sold until the latter part of 1919 or early part of 1920. But the undenied fact appears that the 58.85 acres upon which it is sought to engraft a trust was purchased and paid for on July 26, 1919. So if Bess Wacasey by express contract loaned the $2,197.30 to J. W. Wacasey for one year, and he kept alive the debt by paying the agreed interest at the end of the contract year, and Bess Wacasey received the interest at the end of the contract year, there is clearly the intention not to extinguish or terminate the contract of loan before the end of the year. If the contract of loan continued until the end of the year, then J. W. Wacasey made no "investment" of the $2,197.30 "for these plaintiffs" in the purchase of the land in July, 1919, about six months before the loan contract expired. Any subsequent payment after July, 1919, made by J. W. Wacasey will not raise a resulting trust. The trust must result, if at all, at the time the deed is taken and the legal title vested. The evidence is not sufficiently certain and is too indefinite to establish a resulting trust, and the judgment is reversed and the cause remanded.