Guin v. Guin

72 So. 74, 196 Ala. 221, 1916 Ala. LEXIS 462

• Court: Supreme Court of Alabama
• Decided: May 18, 1916
• Status: Published

Opinion

SOMERVILLE, J.

(1) To establish a simple resulting trust —as where one person furnishes the money for the purchase of land, and the title is erroneously or wrongfully taken in the name of another — it is well settled that the money must have been paid before or at the time of the purchase.—Tilford v. Torrey, 53 Ala. 120; Preston v. McMillan, 58 Ala. 84; Lehman v. Lewis, 62 Ala. ; Long v. King, 117 Ala. 423, 23 South. 534; Haney v. Legg, 129 Ala. 619, 30 South. 34, 87 Am. St. Rep. 81.

The “time of the purchase,” however, within the operation of this rule, can only mean the time of the acquisition of the title, whether legal or equitable. Any other application of the rule would make of it a senseless technicality, and the language of the authorities does not so require.

In the present case, complainant paid the money before the purchase by her husband, for up to the time he receives the deed there had been no purchase, but ony a verbal agreement, abortive in operation, and void in law.

A trust therefore resulted in favor of complainant when the real and only purchase was made on November 25, 1907; the evidence on this point being full, clear, and convincing. — Carter v. Challen, 83 Ala. 135. 3 South. 313.

(2) But “no such trusts, whether implied by law, or created or declared by the parties, can defeat the title of creditors, or purchasers for a valuable consideration, without notice.” — Code, § 3413. This statute has always been construed as protecting only creditors with a lien.—Preston v. McMillan, 58 Ala. 84.

Whether by recording his judgment in September, 1913. or by placing an execution thereon in the hands of the sheriff in March, 1914, respondent Dorroh acquired a judgment lien prior to any notice to him of complainant’s equity, and that equity cannot be asserted to defeat his judgment.—Preston v. McMillan, 58 Ala. 84, 94; Carter v. Challen, 83 Ala. 135, 30 South. 313; Marshall v. Lister, 195 Ala. 591, 71 South. 411.

(3) With respect to the mortgage in question, Dorroh’s rights are of course no better than those of his transferror, Mrs. Hodge, and the decisive question is whether Mrs. Hodge herself had prior notice of complainant’s equitable claim. She being a purchaser for value, the burden was on complainant to show by satisfactory evidence that she had such notice. The only testimony offered for this purpose was that of G. L. Guin, viz., that, while negotiating for the loan, he informed Mrs. Hodge’s husband — who was her agent in the matter — that the land in question belonged to his (Guin’s) wife. This testimony was duly objected to by the respondent Dorroh.

(4) Our statute (Code, § 4007), making parties and interested persons competent witnesses in civil cases, expressly excepts from admissibility their testimony as to transactions with or statements by deceased persons whose estates are interested in the result of the suit, “or when such- deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto” by such opposite party.

This statute has been liberally construed as incluling in the class of incompetent witnesses, and also in the class of protected adversaries, those who are within the spirit and policy of the statute, though not strictly within its terms.—White v. Thompson, 123 Ala. 610, 26 South. 648; Louis v. Easton, 50 Ala. 470; Boykin v. Smith, 65 Ala. 294; Hodges v. Denny, 86 Ala. 228, 5 South. 492; Moore v. Walker, 124 Ala. 199, 26 South. 984.

So, this witness being clearly incompetent to so testify as against Mrs. Hodge, the original mortgagee, he must be held equally incompetent as against her transferee and successor in interest, Dorroh.

It results that, on the legal and undisputed evidence before the chancellor, he properly dismissed the original bill, and granted relief to the respondent, Dorroh, under his cross-bill.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.