NICK ROGERO, APPELLANT,
v.
MARY ANTONIO ROGERO, APPELLEE
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Nick Rogero sought to establish a resulting trust in real estate titled in his wife's name, claiming he paid for the property with his own funds. The Florida Supreme Court affirmed the lower court's dismissal of his bill of complaint, holding that his proof failed to meet the stringent "full, clear and convincing" standard required to overcome his wife's sworn answer denying his allegations.
The evidence presented by Nick Rogero was insufficient to establish a resulting trust. His proof was neither full, clear and convincing, nor so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the alleged trust, and did not overcome the probative force of his wife's sworn answer through two witnesses or one witness plus corroborating circumstances.
“A resulting trust in real estate may be proved by parol, but the evidence to establish it must be so clear, strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust.”
Establishes the stringent evidentiary standard required to prove a resulting trust by parol evidence
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Join FLexlaw to unlock all legal intelligenceNick Rogero accumulated money and invested it in real estate, but the deed was taken in his wife Mary Antonio Rogero's name alone. He alleged this occ…
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Whitfield, J.
Nick Rogero brought suit against his wife alleging in effect that he accumulated some money and invested it in real estate and “by reason of some error” the title was taken in the name of the wife alone. The prayer in effect is that a resulting trust in favor of the complainant be decreed. By answer under oath, the oath not -being waived, the defendant in effect denied that the property was paid for with complainant’s money, and averred that the purchases were made with her money, and that the deed to defendant “was executed in the presence of the complainant, and at his request.” Replication was filed and testimony taken. From a decree dismissing the bill of complaint and dissolving a temporary injunction the complainant appealed. A resulting trust may be proven by parol, but such proof must be full, clear and convincing. Johnston v. Sherehouse, 61 Fla. 647, 54 South. Rep. 892.
A resulting trust in real estate may be proved by parol, but the evidence to establish it must be so clear, strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust. Geter v. Simmons, 57 Fla. 423, 49 South. Rep. 131.
If a complainant in a suit in equity desires to avoid the probative force of a sworn answer, he may do so by expressly waiving the oath in his bill. Where the complainants fail to do this, an answer under oath, in so far as it is responsive to the allegations of the bill and direct, positive and unequivocal in its terms, is evidence in favor of the defendant, in order to overcome which two witnesses are required, or one witness and corroborating circumstances. Russell v. Stickney, 62 Fla. 569, 56 South. Rep. 691.
The defendant answered under oath and the probative force of the answer ivas not overcome by two witnesses, or by one witness and corroborating circumstances. Nor is the proof of a resulting trust full, clear and convincing, or so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the alleged constructive trust. In this condition of the proofs the chancellor did not err in dismissing the bill of complaint and in dissolving the preliminary injunction that had been granted.
The' decree appealed* from is affirmed.
Shackleford, O. J., and Taylor, Cockrell and IIocker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Porte F. Quinn v. Phipps, 113 So. 419 (Fla. 1927)…2 South. Rep. 837; Boswell v. Cunningham, 32 Fla. 277, 13 South. Rep. 354; Booth v. Lennoz, 45 Fla. 191, 34 South. Rep. 566; Geter v. Simmons, 57 Fla. 423, 49 South. Rep. 131; Johnson v. Sherehouse, 61 Fla. 647, 54 South. Rep. 892; Rogero v. Rogero, 66 Fla. 6, 62 South. Rep. 899. If Phipps and Quinn had been dealing at arms length he (Quinn) might not have been bound by his agree [*817] ment to purchase for Phipps, but having undertaken to act for Phipps, he becomes an agent, so our statute of frauds and…1 / 2
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Citizens State Bank v. Jones, 100 Fla. 1492 (Fla. 1930)…sále of lands, the proofs must be so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the trust. Forrester v. Watts, 73 Fla. 514, 74 So. R. 519; Geter v. Simmons, 57 Fla. 423, 49 So. R. 131; Rogero v. Rogero, 66 Fla. 6, 62 So. R. 899; Burgess v. Wirt, 91 Fla. 425, 108 So. R. 169. In the case of Rogero v. Rogero, supra, it was held that “In a suit to have a constructive trust decreed, proof that is not full, clear and convincing, nor so clear,- strong and unequiv…
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Forrester v. Watts, 73 Fla. 514 (Fla. 1917)…by parol testimony, the evidence “must be so clear, strong arid unequivocal as to remove from the mind of the Chancellor every reasonable doubt as to1 the existence of the trust.” Geter v. Simmons, 57 Fla. 423, 49 South. Rep. 131; Rogero v. Rogero, 66 Fla. 6, 62 South. Rep. 899. The theory of the complainant’s case is that there was a valid existing- contract of sale between T. R. Forrester and B. M. Forrester upon which part of the consideration had been paid by the latter prior to his death, and that…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wyatt J. Geter v. Simmons, 57 Fla. 423 (Fla. 1909)
- Johnston v. Sherehouse, 61 Fla. 647 (Fla. 1911)
- Ada Russell v. Stickney, 62 Fla. 569 (Fla. 1911)