# FILED
January 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk VICKY HARVELL, as next friend of ) JEREMY TRAMMELL WILLIAMS, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9706-CH-00258 VS. ) ) Maury Chancery ) No. 95-673 MARY WILLIAMS, ) ) Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHAN CERY COUR T OF MAURY

COUNTY AT COLUMBIA, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

WILLIAM S. FLEMING 207 West Eighth Street P. O Box 90 Columbia, TN 38402-0090 Attorney for Plaintiff/Appellee JANET C. DAVEY 711 North Garden Street P. O. Box 631 Columbia, TN 38402-0631 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE
CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - The trial court declared that a piece of residential pr operty held in the
name of the defendant was subject to the equitable remedy of a resulting tr ust for the benefi t o f her grandson. The defendant argues on appeal that the plaintiff was not entitled to such aremedy because he did not meet the requi red burden of proof, and because of the doctrine of unclean hands. We affirm the trial court.

I.

In No ve mb er of 19 94 , R ic ha rdFr

an k Wi lliamspurchased at auction a residential lot in Colu mb ia and a mobile home, paying $30,000 i n cash for the property. The deed named his mother Mary Williams, as g rantee. Though the deed recited receipt of “the sum of TEN DOLLARS ($10.00) and ot her good and valuable considerations,”

the parties agree that M rs. Williams did not actually furnish any consideration for the property, and she tes tified that she had no idea that her son had bought any property until a deed with her name on it arrived in the mail.

Mr. Williams moved into the home with his girlfriend Vicky Harvell, and theirson Jeremy Trammel Williams, who had bee n born on July 18, 1989. Mr. Williams and Ms. Harvell had beenliving together since 1988. They never mar ried, but Jerem y waslegitimated by an order of the Juvenile Court of Maur y County on November 8, 1991. He was the only child of Richard Frank Williams.

Richard Williams died o n August 6, 1995 at the age of tw enty-nine. After his death, Mary Williams allegedly

threatened t

o have Vick

y Harvel l and Jeremy removed from the property. Ms. Harvell subse quently brought suit as next friend of Jeremy to impo se a resulting trust on the property for the child’s benefit. Mary Williams argued at trialthat the property was a gift to her, and that her son intended for her to retain both the leg al and the equitable title.- 3 - The trial court heard testi monyby Vicky Harvell, and by the decedent’s father, his mother, his sister,and his best friend. The court c oncluded that it was the decedent’s intention that the property go to Jeremy, his only child, and it est ablished a resulting trust for J eremy’s benefit. This appeal foll owed.
II. The Adequ acy of the Ev idence

A resulting trust aris es from a transaction where one party becomes vested with legal title to property under cir cumstances that obligate that party to hold the legal title for the benefit of another. In Re Estate of Roark, 829 S.W.2d 688, 692 (Tenn. App. 1991). S uch circ umstances include, “wher e the property is purch ased and the tit le ta ken in the name of one person, but the pur chase price is paid by another; and where the purchaser pay s for the land but takes the title in whole or in part in the name of another.” Browder v. Hite , 602 S .W.2d 489, 49 2 (Tenn. App. 1980), quoting Gibson’s Suits in Chancery , Fifth Edition, Section 977.

The burden of proof required to establ ish a resulting trus t is always on the plaintiff, and the proof must be clear and convincing to establish such a trust by parol evidence, in the face of the terms in a written instrument. Estate of Wardell v. Dailey , 674 S.W.2d 293, 295 (Tenn. App. 1983). The appellant relies u pon apparent contradictions

in the testimony

of the various witness

es at trial to

argue that the proof
was not clear and convincing that Richard Williams intended for his s on to t ake a beneficial interest in the pr operty.

The testimony of Ms. Harv ell, of Mr. Williams’ fathe r, and of Andre Amos, the decedent’s best friend, were all to the same effect, that the deced ent told them that he bought the property to provide a home for

his son, and so that if anythi ng happened to him, Jeremy would have a place to s tay. Ms. Harvel l and Mr. Amos- 4 -

further indicated that Mr. Williams did not take the deed in his ow n name because he wanted to avoid taxes

and because he was afraid of gov ernment seizure.

The decedent’s moth er, M rs. Mary Williams, and his si ster, Wanda Williams, denied that Mr. Williams had ever menti oned to them that he wanted Jer emy to have the property. They test ified t o the effect that he put the property in his mother’s name because he didn’t want Ms . Harvell locking him out, and he didn’t want another man living w

ith her on his property

if he was out of the picture.

This apparent contradiction in testimony can be best expla ined b y presuming that both versions of Mr. Williams’ intentions are accurate. He wanted the p roperty to go to his son, but he also didn’t want Ms. Harv ell to have the power to dispose of the property in a way that might be c ontrary to his own interest or that of his son. If he sought the advic e of an attorney, he

mighthave been advised to set up an express tru st for th e benef it of Jere my, but he apparen tly acted wi thou t legal counsel.

All the witnesses are in agreement that the decedent was very

close to his son, t hat the two enjoyed eac h other’s compa ny, that they did m any things together as father and son, and that providin g fo r his son was a high priority for Mr. Williams. The decedent was very indulgent with toys and gifts. He paid child support into the court so that Jeremy, who has an asthmatic conditi on, woul d qualify for medical insurance through Tenncare. He bought a small candy store for Ms. Harvell
so she would h ave a sourc e of income to s upport Jerem yif Mr. Will iams could no longer pro

vide for hi m.

There is no evidence in t he record that in deeding the property to his mother, Mr. Williams intended for her to m ove into the mobile home, to evict Jerem y, to collect rent from Ms. Har vell, or to do anything whatsoev er with the property

except- 5 -

to hold the deed. In fact, Mrs. Williams testified that she had n o intention tomove into the home after her son’s death, and only began thinking of doing so after she and Ms. Harvell had a falling -out.

Richard Williams visited his mother on a dai ly basis , and there is no doubt that he was

devoted to h er. Mary

Williamslived in the

same house for most of her life. The house was not t itled in her name, but in the name of a cousin in Nashville. Mrs. Williams did not pay rent, but did pay the taxes on the property.Over the years, Richard Williams put a new roof over the home of his mother, put new floors in the kitchen, bedroom and porch, and arranged for gas heating to replace an old wood heat ing stove . Th e implication is clear that he intended for her to be comfortable in the house she was already li ving in, andthis court finds the evidence clear and convincing that he also intended that

his son be comfortably and securely housed in the residence he prov ided.

III. The Clean Hands Doctrine
Testimony

at trial indicated that while Richard Williams held d own several legitimate jobs before his death, including oper ating a car wash and det ailing shop with his father, and sanding fenders for Saturn, he also allegedly deal t in illegal drugs. The proceeds from his drug-dea ling apparently enabled him to pay cash for the property in dispute, and he was wor ried that the discovery

of his illegal activities could lead to negative tax consequences or forf eit ure of the property. He therefore decided not to buy the propert y in his own name.

The appellant reminds us of the maxi m of equity that “He wh o comes into equity must come with clean hands.” We note that the doctrine of unclean hands must relate to the particular transaction which is the subject of the ligitati on, and not to collateral matters. Chappell v. Dawson , 202 Tenn. 672, 676, 308 S.W.2d 420, 421- 6 -

(1957). Thus, the inequitable conduct at is sue here is not the alleged drug dealing by the decedent, but his attempt to fraudulently place the property beyond the reach of potential creditors, suc h as the I.R.S and the Department o f Justice.

If Mr. Williams

himself were before this court, and attempting to regain the property for his o wn benefit, then his prior conduct would prevent him from enl isting the aid of equity to obtain the remedy he seeks. “. . . [I]t is settled in this state by an unbroken line of decis ions that a party guil ty of fraud is not entitled to be
r eli eved from its consequences.” Thomas v. Hedges, 27 Tenn. App. 585, 592, 183 S.W.2d 14, 16 (1944); McCallie v. McCallie , 719 S.W.2d 150, 154 (1986). However, the plai ntiff

in this case is a seven-year ol d boy who is not guilty of any wrongdoing, who has lost the protection of a loving father, and whose interest in a stable residence is now held hostage to a dispute between his mother and his grand mother. We do not believ

e that it is

equitable to impose the doctrine of clean hands upo n him.

The appellant points out that the case of Thomas v. Hedges, supra, also stands for the proposition that the fraud of the grantor binds his heirs:

“[t]he test is whether the a ncest or, if ali ve, could h ave repudiated the deed for the fraudulent purpose . . . . If he could not do this, then the comp laina nts as his heirs could not; for they

are in privity of estate with him. They claim only through him as heirs, and hence ha ve no higher or gr eater rights than he had.” 183 S.W.2d at 16, 27 Tenn. App. at 591-2.

While we know of no case that has specifically re versed Thomas v. Hed ges on this question , our Supreme Co urt has indicate d that even if th e ge nera l rule as enunciated above is valid, it is not abso lute.

In Burleson v. McCrary , 753 S.W.2d 349 (Tenn. 1988), the Court dealt with a situation where the remaining hei rs of a grantor sought to establish a resulting trust on property that the gr antor had deeded to two of the heirs before his death, in- 7 -

order to prevent the property fro m passing th rough his estate, wher e it would be subject to his medical de bts. Though the appellant insisted that the heirs “ stand in no different position from that whic h [the grantor] occupied,” the court stated: “It is pointed out by appellant that the grantor may hav e had an illegal purpose in mind, to frustrate legitimate creditors; but among his children no

policy of thelaw precludes the gr anting of a resulting trust, par

ticularly wher

e the grantee was

a party to the alleged improper purpos e and had knowledge thereof.” 753 S.W.2d at 353.

While there is no proof in the present case that Mary William s was a party to her son’s a lleged improper purposes, or that she had ac tual knowledge of them, her contention that he i ntended t o make he r a gift

of the subject property is not supported by any evidence. We therefore agr ee with the trial cour

t that the equities of this case support the granting of a resulting trus t to Jeremy Williams.

IV. Consideration

The appellant makes one other arg ument, whi ch we believe may be disposed of easily. She argues that the recital of pecuniary consideration in the deed creates a conclusive presumption, in the absence of fraud or mistake, of anintention that the grantee is totake the beneficial interest i n the estate. However, we agree with the appellee that the presumption in question arises to bind th e grantor only where the grantor himself is see king toobtain the beneficial interest , in the face of his
own recital of

consideration. See Greene v. Greene , 38 Tenn. App. 238, 272 S.W.2d 483 (1954); Latshaw v. Lat shaw, 787 S.W.2d 9 (Tenn. App. 1989).

In the present case, the grant or receivedactual considerationfor title to the pr operty, but is not arg uing that he retained the eq uitable interest in the face o f that consideration, and the grantor is in fact not even a party to these proceedings. The presumption would apply if Richard Williams had obtained the title to the proper tyin his own name, conveyed it to his mother by a deed which recited conside ration, and

then sought to retriev

e the equitable title for hi s own benefit.

V.

The judgment of the trial cou rt is affir med. Remand this cause to the Chancery Court ofMaury County for further proceedings consistent w ith this opinion. Tax the costs on appeal to the appe llant.

_____________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE