McGowan v. McGowan

80 Mass. 119

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1859
• Status: Published

Opinion

Hoar, J.

The plaintiffs seek, by their bill, to enforce the execution of a resulting trust. The case made by the bill is undoubtedly one of considerable hardship ; but we are unable, upon careful examination, to perceive, that it admits of any relief from a court of equity, consistently with a due regard to the well settled principles of law. The whole consideration for the purchase of the estate was three hundred and forty four dollars, of which three hundred and twenty dollars was paid by the note of James McGowan, under whom the defendants claim, and to whom the conveyance was made; and twenty four dollars agreed to be paid in labor by John McGowan, the father of the plaintiffs, which was afterward paid by him. The subsequent transactions between the parties, and the improvements made upon the estate, being all proved by paroi evidence, and proceeding from contracts not in writing, do not change their original relation to the title.

There is no doubt of the correctness of the doctrine, that where the purchase money is paid by one person, and the conveyance taken by another, there is a resulting trust created by implication of law in favor of the former. And where a part of the purchase money is paid by one, and the whole title is taken by the other, a resulting trust pro tanto may in like manner, under some circumstances, be created.

But in the latter case we believe it to be well settled that the part of the purchase money paid by him in whose favor the resulting trust is sought to be enforced, must be shown to have been paid for some specific part, or distinct interest in the estate; for “ some aliquot part,” as it is sometimes expressed; that is, for a specific share, as a tenancy in common or joint tenancy of one half, one quarter, or other particular fraction of the whole; or for a particular interest, as a life estate, or tenancy for years, or remainder, in the whole; and that a general contribution of a sum of money toward the entire purchase is not sufficient. Crop v. Norton, 2 Atk. 74. Sayre v. Townsends, 15 Wend. 647. White v. Carpenter, 2 Paige, 217. Perry v. McHenry, 13 Ill. 227. Baker v. Vining, 30 Maine, 121.

The case of Jenkins v. Eldredge, 3 Story, 181, might be considered a conflicting authority; but, beside the question how far the doctrines of that case can be reconciled with the general current of decisions in this commonwealth, the ground upon which Mr. Justice Story proceeded with the most confidence in his elaborate judgment in that cause seems undoubtedly to have been, that the agreement of Eldredge to make and preserve as evidence a written declaration of trust, which he after-wards neglected and refused to make, would constitute a case of constructive fraud, against which equity would relieve'.

In the case at bar, there is no allegation that any division of the property was contemplated by the parties ; or that the work done by John McGowan in part payment for the conveyance was intended as anything but a small contribution toward the entire purchase. Demurrer sustained and bill dismissed.

*

A similar decision was made in Berkshire at September term 1860, in the case of

Bushrod Buck vs. Charles H. Warren,

in which a demurrer was sustained to a declaration in an action of contract, praying for relief in equity, which alleged that the plaintiff mortgaged land in Lanes-borough worth $14,000 to Henry Shaw, to secure him as surety for the plaintiff on a promissory note for $4000 to Daniel Smith; that Shaw assigned the mortgage to Smith, who entered for foreclosure, and remained in possession of the land for more than five years; that, the amount due on the note being then $4649.77, the plaintiff agreed with Smith and Henry Warren that the plaintiff should pay $149.77 of the note, and Smith should convey the land to said Warren, and for the residue of the note Warren should give Smith his own note, secured by mortgage on the land, and should hold the land in trust to apply the rents and profits in payment of the note, and, after such payment, to hold the land in trust for the plaintiff; that the land was so conveyed by a deed, absolute in terms, but solely in trust as aforesaid, and Warren took possession of the land and received from the income thereof more than the amount of the note; that the plaintiff placed in the hands of Warren property exceeding in value the amount of the note, but AVarren conveyed away the land, without consideration, to one who had notice of the trust, and who since made a voluntary conveyance thereof, with like notice, to the defendant, the son and heir of Henry Warren; that Henry’s estate was said to be insolvent, and the holders of the note and mortgage offered to relieve it from all liability on account of the note; that the plaintiff had repeatedly offered to Henry before he conveyed away the land, and to the defendant since he took it, to relieve them of any such liability, and demanded a deed of the land, and been refused; and that the plaintiff was and ever had been ready to relieve any person from liability on account of the note.

H. L. Dawes, for the defendant.

J. E. Field, for the plaintiff.