Farooq v. Cosner

Lowe, J., delivered the opinion of the Court. The adversary system of jurisprudence works quite well so long as parties on the same side of a case have a similarity of interest in the outcome. When parties so aligned do not, as when tenants by the entirety become divorced, the adversary system is hindered perhaps, but has the capacity to equitably overcome the incongruity. The appellee, Adolph W. Cosner (Adolph) sought by suit brought in the Circuit Court for Harford County to impose a resulting trust upon two parcels of land, one consisting of 41.8 acres, the other 7.5 acres.

The titles to both were in the name of his son Jerry Adolph Cosner (Jerry) and Jerry’s former wife Mary Louise Farooq. Because the land was conveyed to “Jerry Adolph Cosner and Mary Cosner, his wife” in both instances, the appellee sued his son Jerry as well as Jerry’s former wife. Although Jerry was thus compelled to join his erstwhile wife, it is apparent from his testimony and the counter-productive efforts of his counsel that his loyalties lay elsewhere. Shielded only by the strong presumption in favor of legal title as evidenced by the deeds, Mountford v. Mountford, 181 Md. 212 , Mrs. Farooq faces the frontal assault of a father, buttressed by a flank ³⁴³ attack from the son.

While none of the parties proclaims eleemosynary motives, we are relieved of the necessity to determine who among them is most avaricious, the father, the son or the erstwhile spouse. Initially we deny appellee’s motion to dismiss the appeal because only one of the “two co-trustees” has appealed. Appellee’s son was satisfied, indeed quite pleased, with the result below. Since the chancellor declared a resulting trust and only appellant Farooq appealed, appellee now asserts a violation of the rule that co-trustees must act with unanimity.

In Sokol and Eliasberg v. Nattans, 23 Md. App. 600, 609 , we recognized that the interest which a trustee has in the subject matter of the trust corpus was of a dual nature and decided that a right of appeal is universally recognized where a trustee’s personal rights are affected by the order or judgment. Furthermore, the unanimity rule, applicable to trustees’ actions in execution of trust-imposed obligations, can hardly be extended to a suit defending against the imposition of a constructive trust. The motion here is denied and we proceed to the merits of the case. The Facts Adolph and his former wife Rhoda (the father and mother of Jerry) sold a 79 acre tract of land to John W. Smith for $15,000.

The Cosners took back a $7500 second mortgage. Soon thereafter some domestic turbulence developed and the marriage of Adolph and Rhoda erupted into a full scale legal storm. Their jointly owned real estate was sold at judicial sale and Adolph found himself faced with limited resources, mounting liabilities (alimony and support) and an estranged wife’s counsel ever vigilant for signs of attachable assets. For four years John Smith had been unable to pay even the interest on the second mortgage and while Adolph presumably did not press as to his one-half interest, Rhoda through her attorney did. 41.8 Consequently Mr. Smith proposed to resell to Adolph a ³⁴⁴ substantial portion of the land that Adolph and Rhoda had sold him.

A bargain was struck and contract executed by Adolph and Smith to sell 41.8 acres for a contract price of $9,356.25. Fearing his former wife would somehow thwart his purpose, Adolph elected to have his son Jerry and daughter-in-law (now Mrs. Farooq) take title in their names. The purchase price was paid by satisfaction of the second mortgage including interest and costs, one-half of which Adolph simply absorbed. Rhoda’s mortgage interest was paid off through Jerry who submitted to her a check with Jerry’s name signed by Adolph (allegedly drawn from Adolph’s funds) and a 30 day demand note from Jerry to his mother for $2,593.75.

According to Adolph’s version, that note was ultimately paid off with $943.75 of his own money and $1,650.00 of Jerry’s money, a loan to Adolph. This testimony was undoubtedly offered to help offset the Mountford presumption of title from the deed, and as tending to prove that payment of the purchase price by Adolph gave rise to a resulting trust in his favor. Fitch v. Double “U” Sales Corp., 212 Md. 324 . Appellee thus took on the heavy burden of proving by plain, unequivocal and convincing evidence that the beneficial interest did not follow the legal title.

Siemiesz v. Amend, 237 Md. 438 . The facts established evidencing the resulting trust in favor of Adolph may be summarized as: 1. Adolph negotiated and contracted to make the purchase. 2. Jerry, one of the alleged trustees, admitted understanding the trust relationship and purpose. 3.

Jerry testified that he explained it to and had to convince appellant because of her fear of taxes and other expenses accruing as a personal liability. She was persuaded that Adolph would prevent this. 4. The testimony clearly showed the purchase price was paid by Adolph (although advanced in part by Jerry), involving the presumption that ³⁴⁵ “where one purchases land, pays for it with his own money, and takes a conveyance in the name of another a trust results in favor of the purchaser, unless there be circumstances rebutting that presumption.” Taylor v. Merc.-Safe Dep. & Trust, 269 Md. 531 , 539 citing Dorsey v. Clark, 4 H & J 551. There is no evidence that Mrs. Farooq either paid or subjected herself to liability for any part of that purchase price. 5.

Grantor and his counsel recognized Adolph as the beneficial purchaser. 6. Adolph ordered, and ultimately paid for, a survey, although the surveyor’s testimony indicated he had looked to Jerry at Adolph’s instance for a delinquent payment. Although Jerry’s blood relationship to his father and severed marital ties with appellant may suggest adverse motives, his position and credibility were vigorously attacked but little shaken by appellant who, in her own testimony, did not contradict Jerry's testimony without equivocation. We cannot find the chancellor’s opinion that “ . . .

Plaintiff and Defendants intended that Plaintiff [Adolph] would retain the beneficial interest in the property ...”, to be clearly erroneous, Md. Rule 1086, as to the 41.8 acre tract. 7.5 The chancellor, however, concluded his opinion by saying that: “The court is convinced of the merit of Plaintiffs claims and therefore gives Judgment for Plaintiff as to both tracts of land.” [Emphasis added]. Our review of the record compels us to disagree. As to the subsequent purchase of 7.5 acres we find little if any ³⁴⁶ evidence of a resulting trust, let alone evidence that is so clear and strong as to remove every reasonable doubt as to its existence. Gray v.