ARK. MARRABLE. V' . HAMILTON: 1079 11 MARRABLE V. HAMILTON. :Opinion•deliveted December 14, 1925.-. 1. TRUSTS—RESULTING TRUST—PAYMENT OF PURCHASE 'MONEY.—TO • "ConStitlite. a reAulting tru gt-in 'property by rea gón,• of payment 1 purehase Price, the, payment'inust . be made at the; same 'time or • , previous, to the purchase, so as : to, constitute . a part .of:the . same 1 transaction, and • will . hot result from. :payments . .rnade. .subsequent to the 'Consummation . of the ; purchase. Taugrs--BuapEN .OF FitdoF.—One alleging a . resulting tr.iiSt.has \ . the 'Ikirderi' Of esiabliShing . the . es§ential eleinefith 4 'd''irua by 1 clear, and 'satisfactory eVidenee.-: : ' 4 • • - • , . • . . . Appeal from Coluninia • Chaneery Court ; J. Y ; Stev-ens . Chaneellor • reversed. ( ,Jqlin Illarrable and Joe Joiner, for . appellant., . Henry ; Stevens. arid Edwin Upton, for. appellee.: . • • AleCui,Loeu.,,.C: J. Appellee .. instituted this actiOn against , appellant.in the chancery - court ' of •- OoluniDia County seeking 'to !establish .a -resulting tritst in Ceftain'. real .bState . in- the ,towri of Magnolia'. - lid•-SeekS to: .have the ..triist, established on 'the ground that ;by -agreement between:Iim..- arid :appellant the latter was , :to purchase the lots from W. A. Scott, the owner; that . he ,,(appellee should pay onesixth . of the purchase price arid beCome the owner of an:undivided orie-sixth ot the 'property to be purchasedyand ;that this arrangement hadbethi carried out ' by , appellant 'consummating the purchase from :Scott. and' securing a deed, but that appellant- had 'refused to- comply. with 4he terms of the' agreement -by ' executing t him •a ..conveyalico . fOk• this undivided onesixth: • On the • trial . of the case in the. chancery court. there Was a finding (
10.80 MARRABLE V. HAMILTON. [169 in favor of appellee, and a decree•'was rendered establishing a trust in his favor. : Appellant . resided at Magnolia; and purchased the property in controversy from W. A. Scott and received a deed of conveyance from Scott, dated April , ,22, 1921. The consideration for the purchase, as recited in the deed and as shown by the testimony in the case, was the total price of $1,000, payable $300 cash and the balance in seven equal monthly installments. , Appellant made the cash payment of $300 and executed to SCott his notes for the balance in installments with intereSt at ten per cent. per annum. , It appears . from the uncontradicted evidence that two other persons, R. At Black and Mrs. 'Elizabeth M. Cox, wife of 'J. 'B. Cox, were interested With appellant in the Pnichase of the' property , from Scott, , and thdt it was agreed between them prior fo the purchase t' hat each of, the_Parties.named was to paY one-third of . the purchase price, and become the owner of .that much interest in the property tp be purchased. There is no contro-versV between appellant' and those 'two Peisons in re: gard to their respective interests in the property: , A. L. Brewer and aPPellee were atthdt time interested 'lli , buying and selling oil leases under the partnership name of Independent Oil& Lease COmpany.. • Brewer wadStaying at Magmilia, carrying on the business, : and 'boarded with appellant .at the, latter 's' hotel. •Appellee lived . at Hart- • ford and fUrnished the money to Brewer with Which .to carry on the business of the Independent Oil & Lease Company. Brewer drew' drafts on appellee from time to time . in carrying on the business. Appellee testified that on April 23, 1921, he was in Little Rock, and Brewer called him up . by telephone and sfloke . to him about acquiring an interest in the property in controversy ihr the town of Magnolia. • Upon his assenting to the purchase, Brewer drew a draft on him for fifty- dollars in 'favor of appellant,' and he paid : the draft' when it rame. which Wa . s on A p ril 27, 1921. He testified further that afbout two months later he made two monthly
.ARK.] MARRABLE V. HAMILTON. 1081 payments of $16.50 each, and- aboht seven montln later offered to make the remaining payment to , appellant;:but .the latter refused to accept the payment and refined to •Make a deed. 'Appellee introduced in evidence- a -letter receiVed 'through the mails purporting to be written by appellant, dated June 18,4921, setting forth the , ternts of the . put-Chase . from Scott and containing the .. follewing statements: ' • • . " ' ' . "The purchase priee of the let . a,s: . ($1,000) orie thmisand dollars, payable , $306 cash, balance' $100 1 per )Month, and as you'have a 'One-sixth intere'st Your first 'payment was $50; and then One-g iith Of $100 for seven months. When the first payment was due, I Paid'yonr Part,' aA I did not knOW BreWer 'bOught 'for you: , The / ,seCond paYinent will be dile the . 21st' Of JUrie'this Month, . se yo'u can 'send Me d Check tO 'cosier the:twd payments. t 1, 'The note bears 10 per cenit : . , s6 yeti caii fiiiire -What it is, 'and send . me check to • cover the two ' paymentS. ' a was 'agreed -between the others that when the ilot Wft.§' paid I ' Mit I would-deed eareh one his Part,' as : the rot was deeded to Me, l andthe notes made ont agaiint me.'When are'yOu coming down again? I don't think there is nitch doitig c ht preSent in tradi , , ng of leases . and etc..", if 'The letter contained no 'descriPtion of , the pr9perty ,in , controversy. , „ . Appellee also introduced in evidence a receipt signed , by appellant, dated April .23, 19 . 21, acknowledging payment of .fifty ,dollars by A. L..Brewer ' as ,part •payment , on lots, bought of W. A. Scott." The receipt contained a further recital that the , fifty dollar . payment,..was , for - '' one-sixth interest," and that deeds were:to be delivered ,later, but the instrument contained ,no description , of : the property purchased. - , ,>•• . . Appellant testified that at the:time of the purchase ' of the property from Scott he had an•agredinent with Black and Cox in relation to their interests, and that 'th,ey paid part, of the• purchase money; but, nothing. was• said
1082 MARRABLE V. HAMILTON. .[169 by. him, to [Brewer abotit the :purchase ;until after it was consummated.• • : • • :.• • . . . It' is conceded that tha testimony is insufficient to establish an express trust,_ for the reason.lhat the,onlY writings., introduced . in, -evidence • fail to ..describe the , property so As:to, take the transaction:out. of the :opera-•tion: of the statute , of frauds., ; :It is ; contended, -however, that the •:e.vidence is sufficient to ,.establish , :,resulting trust by reason of the fact that by agreement between , ,the partiesappellee was to :join . in the :purchase, • and that • .he pai4art,of. the purchase price : pursuant-to that agree-. ,. The chancellor based his decree upon the ,findiug that ,a ;resulting trust , , , had .: been : established : ,by,„ . th „ e evidence , . ..:.:; • It has, b o e m c e the,settled doctrine of, this court that, in order to.. eonstitnte :* a resulting trust by reasen 'Of the payment of,,purchase, money,,the payment , mitst made at, the , Same time or .previous to the purchase ,and . be a part, of the . transact , i On... In other words, , tlie :pay- ment , must be , prioy to, or. contemporaneous , y,qth, . , cha;se s? as; to make : it, a part:of the same .transaction„ and ::. a „ trust not result from payments , , s0sequent to the consummation of, , the purchase. Sale McLeu#,,,29.,Ark. 612; R ' ed Bud Bealty,Co. v.. Sputh, 90 .A4k.• 21,;INuter y. Feild, 114 .. Ark., 128.. We are of the opinion that the eVidénee thiS' 'Ca g e fails: to' 'shoiV , that' there' 'waS' a payment made by appellee, or -an agreement : with' reference thereto, -atthe time c ofthe purchase' or prior thereto. The •ncontradièted evidence is that -the purchase from , &Ott was' cOlikillinige ' d" on 'April -22; . 1921; l and ,tha thb: first corinectioh. ; app'ellee had -‘vvith the Plirehase' was' a day later,. , ofi, April :23,' 1921: ' 'It is , 'true that-•thiS iS A v6ry ' ..narrO* . mArgin of tithe,' and', there' 'were' circumstances in, the .. ease ivhieh justified it, this' short period tnight bridged so as to hold that the , tfaltsactioriS-!, Were con-• teMporaneous, but there is. no. Circunistance proved in the • , ease to show . that. there AVas'.any connection: between 'Ap-pellee and appellant or : between Brewer, appellee 's' agent, • and appellant, prior to'the payment of the money on the
ARK.] , MARRABLE V. HAMILTON. 1083 day mentioned. The receipt shows that the Money was paid on April 23, and appellee,himself testified that that was the day the payment was, made, and appeJlee does not claim to have had 'any transaction With appellant prier to that . date. ' BreWet did net thstify in the case, and there is ne testiniony tending to sbow that there we , re any n , e goti , a tions or agreements -betwee . n , appellant and Brewer,prior to April , 23, , the day .after the ,execution , of . the, , deed: , Appellant; testified positively , , that nothing , took place betweemihim and Brewer in :regard to 'the matter 'until after his-!purchase freinScott had been !consummated, and he is not contradicted, hnt on the . Other 'hand is 'Corroborated 'by bah 'CO* and Black, '- who:testified that'Brewer had riddling te'do With the rMr-chase from Scott, and that th , ey, never knew, until .after the consummation of the deal, that Brewer or:.appellee were to become interested. ; • The burden isi, on 'appellee to establish the : trust hy clear 'arid' satisfacterY evidenee, arid . he' has'"failed to prove the essential elements of ,.a trust—the essential facts from which a trust would result, that is te say, that the 'Payment was made as a part of the' transaction. of purchase. The chancery court' erred in its decree, and the dame is reversed, and the cause remanded . with directions to enter a decree 'dismissing the' coniplaint for warit of equity.'
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.