The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-02-01
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
OCTOBER TERM, 1866.


: The Opinion Of The Court delivered By Chi
: Justice Handy.
This was bill in Equity, filed by the al
pellant against the appellee, for the purpot
OF establishing an implied trust in favor
the appellant, in certain lands purchased b
the appellee.
The material allegations of the bill or,
that the appellant was the only child Of hi
mother, Anne @. Gibson, who being q widow
intermarried with the appellee in the yea
1858, and died in the year 1865, intestat
aud without there having been any issue Q
her marriage with the appellee--that Mt tn
time of her marriage she was possessed, i
her own right ard as her separate property
under the laws Of this State, of sum D
money amounting to about four thousan,
dollars. which money the appellee b0rrowe,
from her, pledging himself to return th
same and fully account for it, by returning
the principal and interest, or by investing
the same in real estate for the sole use an,
benefit of his wife,
The bill then makes an exhibit of writ
ing signed by the appellee in the following
words Il 4s fsf tf tf#Rftk
CLAIBORNE, Jan. Is, 1861.
have collected Of Mrs Shelby and other
of Port Gibson about three thousand dollars
which was due my wife, Anne G. Foote, ant
| for which will make arrangements to pa,
| her as soon as ! can conveniently do so'-
but the bill does not allege that this pape
was the evidence of the agreement previous
| ly stated H
1t further alleges. that the appellee re
ceived about, one thousand dollars more, fol
| and on aseount Of his wife, pledging himself
to account therefor--that on or about the
I'd of Feb. 1862, he promised his wife t.
purchase real estate TO the amount of the
moneys received by him, and to take the
! title in her name in satisfaction Of that
amount and that on the 2d of Feb. 1862
he did purchase certain lands of ono John
son and wife, for the sum of four Thousand
and eighty dollars. The deed is exhibited
and bears date 22d Feb. 1869, and is made to
| the appellee, when in fact he was acting as
the agent and trustee of his wife-that both
before and after the purchase, he pretended
that he had taken the title in the name OF
his wife. 1T further alleges that the appel.
lee was enabled to make said
purchase alone through the cash acquired
from his wife-that he was really trustee
for her in the matter; and that he took the
deed in his own name in fraud Of her rights.
The appellee filed an answer denying the
charges of fraud, and demurrer to the right
set up and the relief sought in the bin
This demurrer was sustained, and from that
decree TINS appeal Is taken. Az m
In order TO establish resulting trust in q
case of thissort, and where there is no valid
agreement to purchase the property with
the trust money, it is necessary to show that
the money was, at the time Of the purchase,
the fund of the party claiming it, and that
1t was used in the purchase Of the property.
For the doctrine of trust, in such case,
proceeds on the idea that the money was
the propart ,af The party. s,-d chat leo form
merely has been changed by the purchase,
SO that the land is subject to the same right
as the money.
When we carefully examine the state.
ments of this bill, it is evident that they
are deficient in alleging that the money was
a specific fnEd belonging to the wife in the
hands of the husband at the time Of the
purchase. or that that fund was applied in.
making the purchase. asg e4tre r9
First, as to the property in the fund. Il
alleges that the husband "boyT0tcedr the
money from TIE wife, pledging himself to re-
turn or fully account for it, by returning
the principal and interest, or by investing
the same In real estate for her use and BEN
eft. This allegation appears to be general
and to applyito the entire money received
by the husband. 1t shows that the money
was loaned by the wife to the husband to be
paid principal and interest, or invested in
land for her use. The agreement to pay in
terest clearly shows that was contempla-
ted that he should use the money on his
own account. He, therefore, clearly had
the option to use it as his own as borrowed
money, which he was to take and use, pay
ing interest On it, or to invest in land for
her use and il appears that he applied it
to his own use In the purchase of land In
MS own name and right.
The bill then proceeds to particularize a.
% this general allegation, and to state how
his money was received and the nature of
he obligation of the husband, 1t shows a
written acknowledgment of the husband
lated the 18th of January, 1861, of his
having collected $4,000 Of the money due his
wife, and agreeing 10 make arrangements to
'dg her as soon as he coald conreni- |
aHy do 10 and II further alleges
hat he ueceiyed about one thousand |
dollars more, for and on account of his |
wife, "pledging himself to account for the |
anne" These two sums make up the amount |
Vhieh he is alleged to have received; and It |
, clear from the statements of the bill in /
elation to each Of them, that he is only /
hargeable as upon a general indebtedness
or both of them, for money had and receiv-
d by him TO her use and these particular
tatements appear fully to negative the idea
hat the money was held by him as a specific
and belonging to her.
I'd, As to the application Of this money to
he purchase of the land it alleges that he
romised his wife TO purchase real estate 10
le amount Of tie moneys feceiCed bv him, and
, take the tit,e in her name in satisfaction
/ the amounts and that afterwards he did
urchase the lands claimed, for the sum Of
'ur thousand and eighty dollars, and that
} tcds enabled 10 make said purehase alone
rough the cash acquired from his ieifc. 1t
pes not aver that he appropriated the
ouey received for, or On account Of his wife.
} the purchase of the land and these ale
atoms may ibe true. and yet the money 4
light have been bis property by the loanor \
emission Of tts wife IN which event he
ould have bad the right TO make nee Of it
T his own benefit a. he thought proper be
& accountable only to her for so much
oney had and received by him to her use. ,
nero is no distinct and positive averment
at the money received ON account Of the J
fe was paid for the purchase Of the land.
d such an inference could not be INDUCED
cause the. ayerments must be taken most a
'ongly against the pleader, and because '
CHI inference would be irreconoilable with
e allegations that the money was borrow
by him on interest. that he was to pay Il .
soon as he could conveniently do 50, and :
At he pledged himself to acconnt for It.
L is, therefore, very clear that the allega- =
M Of the bill do not show a case Of ms :
ed trust !.
Butit is insisted that such trust is shown Il
the allsgation that, in February le62, the d
pellee proHisef his wife 70 purchase real 4
ate to me amount 81 tie moneys received, B
J TO take the title 10 her nhrns. and that n
did make the purchase, but took the title :
bis own name. ...r. --. .s..rr !.
Ipon this view. the bin shows q case Of
ress frHsf, founded on the promise Of the
,ellee to purchase real estate to the
cunt in which be was indebted 10 his n,
Q, and for her use. The right Of the wife n
aid depend eutirsly on the ezprsss proDiss "a
The husband 70 perform this obligation; u
Of course Il does not show case OF m NJ
4 t1sf. which can only exist BY impiica- u
! Of law, and results from the facts Of the / r.
} showing that the party 4 In equity en- 2.
ID 70 the right claimed -
he arguments Of counsel for the appel. -
} on this point goes to show that Il l.
, Of express trusti and IL that Be true II -
bnoxious 10 the objections taken b. the n
Iurrer that it Il Foid under the stafute Of -
de because not in writing and sifned By n
Partisi for u IL only implied trusts IN
are excepted fnom thspper1tion a. that
an. Is = MISSED By counsel sof sss - u
ut, Tat he L enfiflsd 70 the relisf