I am very much impressed with the able opinion prepared by Mr. Justice CHAPMAN in this *Page 29 case and if the decree of the court below had reflected the conclusion which has been reached by the majority of this Court, I should have had no hesitancy in agreeing to an affirmance.
In such cases as this the findings, orders and decrees of a referee are entitled to the same consideration, weight and dignity of standing as are the findings, orders and decrees of a Chancellor.
There can be no doubt that long prior to and during the period of time during which the transactions here involved transpired Mr. Grady occupied a fiduciary relation with the complainant which in law required his absolute loyalty to her and preclued his acquiring any interest in the property involved against her interest without her full knowledge and consent so to do. See Quinn v. Phipps,
If Mr. Grady acted in acquiring the title to the property involved in his own right with the full knowledge and consent of the complainant that he should do so then no fiduciary relation existed which would result in the title to the property involved being vested in him in trust for the use and benefit of the complainant.
The presumption of the existence of constructive trusts I think may be rebutted when fiduciary relations shall have been shown to exist just as the existence of a resulting trust as a presumption of law may be rebutted.
In Fox v. Kimbal,
"In Jackson, ex dem, Feller v. Feller, N.Y. 2nd Wendell 465, it was held, `A resulting trust may be rebutted by parol proof that the lands in which the estate is claiming were a gift and advancement to the grantee, and were not purchased for the benefit of the party paying the consideration money' and this continues to be the view of the Courts in this country. *Page 30
"In Lewis on Trusts, Vol. 1, Eighth Edition, page 233, the writer says: `When it has once been ascertained that the understanding of the parties at the time of the purchase was that the legal owner should also be the beneficial owner, it is not competent for the person who paid the money to put a different construction upon the instrument at any subsequent period, and claim the estate against his intentions at the time (a); and even if under such circumstances the legal tenant agreed afterwards to execute a conveyance to the person who paid the money, the Court would not enforce the contract, if merely voluntary (b).'
"In Dudley v. Bosworth, 10 Humphreys Tenn. 9-51 Am. Dec. 690, the Court says: "WHETHER CONVEYANCE TAKEN IN THE NAME OF ANOTHER THAN THE PERSON PAYING THE CONSIDERATION is an advancement to such other, or a resulting trust is created, depends upon the character of the transaction at its inception.'
"Resulting trusts may be rebutted by parol declarations of the persons in whose favor it would otherwise be raised."
The evidence was conflicting as to whether or not Mr. Grady in the transaction involved acted in his own behalf with the full knowledge and consent of the complainant. It appears to me that only on the theory that he so acted could the referee have reached the conclusion which he did reach.
I am not convinced that it is made to clearly appear that the referee committed error.
