• • 4-4002 - • Opinion• delivel'ed'oetobér 21, 1.935.'' . GIFTS—EVIDENCE—EVIDENCE,Evidence held to sustain the chap,- celfor4s finding that moneY sent by a son to his parents to.be •applied as part of the'purchase 'of realty N i vaa not a gift. '1 2. TRUSTS—RhSULTING TRUST.—Where the purchase litice df lan'd Was furnished by a son to his fathei who took title in his, öwn name, a resulting trust arises in favor of the,son, in the absence. of.Cir-. camstances showing a contrary intent ; and where the sum furnished by . the son is only part of the consideration, , a resulting trust pro tanto arises in his faVor, provided it Cs for some' aliquot - part of the Whole consideration:. 'Nuns—RESULTING TRUST. — The . fact that- parents 'moved ontO-. and resided for a long tirae. on. a. farm purchased. in part with a •son's . money and .paid the-taxes thereon did not f prevent the crea- tion of a resulting trust pro tanto in . favor o 'f the son, such possession and payment of taxea being reaSonablY attributable to 'their habit of managing their son's business in hia abaenee.' 4. TRIISTSLIMITATION OF ACTIONS.—The statute . of limitations doeS .not bar a trust unless -thelcirciiinstarices raise ,a presumption Of
462 CLARK V. CLARK. [191 extinguishment of the trust or unless there has been an open denial or repudiation of the trust. 5. TRUSTS—PERSONAL PROPERTY.—In a son's suit against his parents to have the title to personal property vested in him, the chancellor properly decreed that the property belonged to the son where the evidence showed that the property was willingly delivered to' the son by his parents and the weight of the evidence was that it belonged to the son. 6. APPEAL AND ERROR—CONCLUSIVENESS OF FINDING OF CHANCELLOR. —The chancellor's finding on conflicting evidence that money given by a father to his son was not intended as a gift will not be disturbed. Appeal from Washington Chancery Court; Lee Seamster, Chancellor; affirmed. Suit by W. T. Clark against Ashley Clark and wife. Both parties have appealed from the judgment. John W. Nawe, for appellants, Ashley Clark et ux. Duty et Duty, John Mayes . and Bernal Seamster, for appellee, W. T. Clark. HUMPHREYS, J. The appellants in this case are the father and mother of appellee, who has also prosecuted a cross-appeal. About the year 1908, appellee, who was a young man living with them in the home owned by them near Goshen in Washington County, known as the Mayes place, went to California, to work in the oil fields. After arrivin g in California he.obtained em p loyment at a wage of $6 a day with room and board. His mother wrote him that the Slaughter property near their bome was for sale at a bargain, and that his father wanted to buy it but did not have the money to do So. At that time appellants owed a considerable sum on the Mayes place. Appellee, who was a young unmarried man, wrote his mother to tell his father to buy tbe Slaughter farm and that he would help pay for 'it. The property was purchased mostly on credit for $3,000. Appellants moved upon it, and, according to the testimony of Mrs. Ashley 'Clark, her son sent them from time to time $2,200, which was applied on the payment of the purchase money. The balance of the purchase money or $800 was paid by them out of the proceeds from the two farms. Although appel-lee testified that he sent enough money to them to pay the entire consideration, his mother produced a record
ARK.] CLARK V. CLARK. 463 which she had kept of all remittances; and they totaled $2,200..When the full consideration . of $3;000 and interest had been paid to Slanghter in 1913, Ashley Clark took a deed to the Slaughter tract of 155 acres to himself, which he handed to his wife, Mrs: Ashley Clark, for safekeeping and never recorded same nor informed appellee to whom the deed was made. Appellants continued to reside upon the place until aPpellee returned from the World War and purchased another farm from Ellery Clark. He had contiimed to work and save his money until he enlisted as a soldier. After- returning from the war . he: procured emPloyment in the oil fields of Okla-homa at $18 per day and, during that time, Ashley Clark, his father, .purchased the Ellery Clark farm. near•Goshen for him; agreeing tw pay therefor the sun' of $16,000. Appellee. paid $9,800 of the indebtedness and appellants paid $1,200 Out of the proceeds which had been received from the Slaughter: and Mayes farms and appellee and his • father executed:a •• note to Ellery Clark for $5,000, evidencing the balance of the purchase money. The deed to the Ellery Clark farin was taken in the name of appel-lee and handed to : Mrs. Ashley Clark, who put same with the deed to : the Slaughter. farm, and it was never reCorded. Appellants then nioved to the Ellery :Clark farm and operated these farms, never keeping or rendering any account to appellee. Appellee then moved . •to California and procured Work in the oil fields at $18 a day. The -$5,000 note representing the balance due on the Ellery Clark farm was paid in part by proceeds from all the farms, * which' were looked after and operated by appellants. About two-thirds of the amount was paid by appellee in remittances from California. Appellee returned to Goshen in the fall of 1922 and having married Moved upon the Slaughter farm without attorning to appellants for the proCeed§ derived therefrom. Whew he returned, cattle were sold off the . Ellery Clark farm for $480, which was received by 'appellee. Some time in the summer of 1923, appellee went back to California and did not return until 1930, at which time he took charge of both the Slaughter and Ellery Clark farms and all the personal property and operated a.nd receiVed all the
464 CLARK -V. CLARK. [191 proceeds -therefrom. During his absence, appellants bought another small farm adjoining the Slaughter farm, where they moved after appellee's. return from Cali-fornia. Ashley Clark, from 1923 until-1930,. had.operated the farms, without keeping . any . accohnt or what was purchased and sold and without accounting to appellee in any manner. In the meantime, he had accumulated fOur or five thousand dollars and- -deposited same, ih a Fayetteville bank in his own name. After taking charge of both the Slaughter and Ellery Clark farms and all the personal property, a large part of which appellee had pUrchased, Mrs. -Ashley Clark-handed appellee. the deed to the Ellery Clark:farm, and, when asked about-the deed to .the Slaughter. farm, she replied :that she- -had it,. but that .appellee 's father -did not want her to -deliver that deed to him.- Shortly thereafter the money deposited in the Fayetteville bank came up. for discussion, and •two checks, one for $500 and one for, $1,000 .were given- to appellee- by his father, Ashley Clark, and:the amount Of $1,500 was transferred from Ashley -Clark's deposit account to the individual deposit account. of . appellee. When appellee began to check on his personal account, payment of the checks was refused, and when he inquired into the matter, the bank informed- him that his father liad re q uested it to -transfer the -money back _to his own accOunt, which it had done. When appellee requested his father, Ashley Clark, to Oxplain why he had stopped payment on the checks, he told him that, $1,500 was too-much money for him . to have and handed him. a . check for $1,000. This check was cashed and. nsed by .appellee. Ashley Clark testified that he loaned appellee . the $1,000 and appellee testified that it was not a loan but a gift to him. Nothing more was said or done about the matter Until this- suit was instituted by appellee to have the title to the Slaughter farm-vested in him and' for an accounting of the rents and profits which his father had derived from- it. •- •-• Appellants interposed the defenses that appellee had made a gift to them of a part of the money which they used to purchase the Slaughter. farm, and, if not a gift,
ARK. CLARK V. CLARK. 465 they had -acquired title therete by more than Seven years' adverse possession. - .The .chancery_court rendered a- decree- vesting twenty-two-thirtieths interest. in , the -Slaughter farm in appellee and. eight-thirtieths. in aPpellants. • He:did this on the theory-that appellee-.had . not -made a gift to his father in money of the $2,200 the remitted , to them' tO buy. the farm, and that .the law . raised a resulting:trfist the real estate iri : favor of -appellee-to . the extent his money was tused in. the-purchase Thereof, . and- also . rendered a judgment against apPellee for the:$1,000 he'received from his-father upon,his :return froth :California. Both parties have 'appealed from the decree. in . so -far as the decree is adverse to the-claims of -each.: : *. - I • . . • • The- court correctly found that • the . $2200 was not 'a gift•hy appellee to. appellants: It -is -undispUted , that the mother kept:a 'record of- each-remittance:made to :them cOvering a period- of three or four . years. Had these re-• mittances been intended as gifts, it-Was not necessary:to have .kept a :13Ook :record ,Of them; -whereas i- if they had been sent to pay for all or a part of ithe farm,' a‘reeord of them would be a natural thinglo: keep. • Again,- it i. also undisputed that the . Proceeds derived froin the -Slaughter farm were:used in-payment Of -part of . the purchase- price of the Ellery Clark -farm, cOnceded -to -be the-property-of appellee. Again,•itis admitted • that the possession- of -the Slaughter farm was turned -over ; to- appellee when he returned in _both 1922 ;and : 193(Y:without any -claim to -it whatever by appellants. These acts on the part of appel-: lants are wholly inconsistent . with the. claim -that the property was7a gift to them- by- apPellee: , It is .quite apparent that the Temittances . were not loans by appellee -to appellants. In fact,. nO -such claim was made by them: Not being a gift ; on-loan; the onlY other construetion -that can be !placed 'upon. the acts • and-conduct of the parties is that appellee's- 'money was used by:his father; -Ashley •Clark, together.with a part,Of his own in -the purchase of -the Slaughter farin, and the title was taken in the father's -name for: the ;benefit -of both of them. :The general rule laid- down in 39. Cyc. 142, -is; that " where -the . purchase priee -for - lands- :belongs . to .a
466 CLARK V. CLARK. [191 'son or daughter of the purchaser, and the purchaser takes title thereto in his own name, a resulting trust arises, in the absence of circumstances showing a contrary intent, in favor of such son and daughter, sand -Nrhere •the payment of a child's funds is only a part of the consideration, a reSulting trust pro tondo arises in his . favor, provided it is for. some-definite aliquot part of the whole consideration." This rule is particularly applicable to the facts and circumstances in the instants case. The fact that appellants moved onto and resided on the Slaughter farm for sa long period of time and paid the taxes thereon doeS not prevent the application of the rule, for their poSsession and payment of taxes is reasonably attributable to their habit of looking after and managing their son's business affairs in.his absence from the State: They did or said nothing to any one indicating that they were holding and occupying the Slaughter farm adversely 'to appellee. .They did not even record the deed that the world might know that the legal title was in them. In • fact the appellee never saw the deed until it was introduced in evidence in this case. - Appellants contend that they lave acquired title by seven years' adverse possession. The• statute of limitations does not bar a trust unless the circumstances raise a presumption c,f. the extinguishment . of the trust or unless there has been an open denial or repudiation of the trust. Neither is shown by the evidence in this case. Appellee'S right has not been cut off by the statute of limitations or laches. Appellants also contend that the court erred in refusing to adjust equities in the personal property. We think not, for according to the evidence all the personal property was willingly delivered to appellee by appellants when he returned in 1930. Even if it had not been turned over to him upon his return, the weight of the evidence is to the effect that it all belonged to•him. • Appellee contends that the court erred in giving appellants a judgment against him for the $1,000 his father let him haVe in 1930 when he returned from Cali-fornia.: His contention is that it was a gift to him 'by his father, but we are unable to say under the conflicting
ARk.] 467 evidence that the finding of the chancellor is against a clear preponderance of the evidence. No error appearing, the decree is affirmed.
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.