The opinion of the court was delivered by: MCGARRAGHY
This is an action for a judgment declaring that the plaintiff is the legal and equitable owner of premises situated in the rear of 137-139 D Street, N.E., Washington, D.C., and for the clear value of the use and occupancy of said premises; that the plaintiff and defendant each is the legal and equitable owner of an undivided one-half interest in and to premises 1251 U Street, S.E., Washington, D.C., and for partition and sale thereof; that the plaintiff and defendant each was the legal and equitable owner of an undivided one-half interest in certain real estate known as parcel 153/105 which was sold on or about May 3, 1949, and for a decree that defendant thereby became and now is the trustee for plaintiff with respect to one-half of the proceeds of the sale of said property and for an accounting by defendant to plaintiff for one-half of the proceeds, together with interest.
The defendant, by counterclaim, has brought into this action real estate consisting of approximately 521 acres in King George County, Virginia, title to which is held by the plaintiff and the defendant as joint tenants, with right of survivorship. The defendant, in addition to denying that the plaintiff is entitled to any of the relief sought in her complaint, has asked the Court to determine that the plaintiff has no ownership, legal or equitable, in said Virginia property and prays that plaintiff be ordered to convey her title to said property to the defendant.
Plaintiff and defendant were married on April 15, 1929, and, after working shoulder to shoulder in establishing a moving and storage business, and after raising a large family, they were divorced in the State of Florida on December 8, 1946. They entered into an agreement denominated 'Property Settlement Agreement' which became effective by delivery on or shortly after December 9, 1946, and provided for a cash payment from the husband to the wife in lieu of any alimony or support, said payment 'to be in full payment and settlement of all claims which the aforesaid wife may now have or hereafter have against the aforesaid husband for support, maintenance or otherwise'.
During the period when plaintiff and defendant were husband and wife, the properties described above were acquired in fee simple titles as follows:
(a) Rear of 137-139 D Street, N.E. on February 23, 1937 in the names of plaintiff and defendant as tenants by the entireties, and conveyed to the plaintiff in her sole name on December 2, 1938 and so held since that date.
(b) 1251 U Street, S.E. on July 1, 1943 in the names of plaintiff and defendant as tenants by the entireties and the record title continues accordingly.
(c) Parcel 153/105 on June 4, 1945 in the names of plaintiff and defendant as tenants by the entireties. It was sold on or about May 3, 1949, the proceeds of sale being paid solely to the defendant.
(d) 521 acres of farm land in King George County, Virginia, in 1945 in the names of plaintiff and defendant as tenants by the entireties.
Dealing with the rights of the parties with respect to each of the properties in question, it is my opinion that the following principles are controlling:
This property was acquired by the parties as tenants by the entireties. The plaintiff contributed from her own funds toward the purchase price. On December 2, 1938, while the parties were still married, the property was transferred to the plaintiff in fee simple and the record title continues accordingly to this date. Defendant contends (1) the plaintiff is merely trustee of the property, (2) plaintiff is estopped from asserting her title due to the continuous exclusive possession of the defendant since the time plaintiff terminated active duties with the business, and (3) that plaintiff is barred by laches and the statute of limitations.
In attempting to impress a trust upon this property, defendant is obliged, under the law of this jurisdiction, to overcome a strong presumption. In McCartney v. Fletcher, 11 App.D.C. 1, 10, the Court said:
'* * * There seems to be no general rule that can be stated that will determine in all cases when a conveyance will carry with it a beneficial interest, and when it will be construed to create a trust by implication or construction of law; but the intention is to be gathered in each case from the scope of the instrument and the special circumstances under which it was made. There is one general principle, however, that may be stated as settled, and that is, that a conveyance made to a wife or child will be presumed to carry a beneficial interest, and whenever that presumption is attempted to be overcome, it can only be done by the most indubitable evidence. And where the husband, as in this case, has divested himself of the legal estate in favor of his wife, the presumption that the beneficial interest was intended to pass is so strong as to be almost irrebuttable.' (Italics supplied.)
In my opinion, the defendant has not overcome this presumption, but, on the contrary, the evidence establishes that the plaintiff holds both legal and equitable title.
Defendant next contends that plaintiff, having failed to assert her title for a long period of time, is estopped to assert it against him at this time. While it may be true that under certain circumstances a wife may be estopped to assert her title where her property is in her husband's possession, that type of situation is not present here. Estoppel has as its basis the principle that, where one of two innocent persons must suffer, the one who has permitted the harm to come about is the one who must suffer; it contemplates intervention of rights of innocent third parties. (See 26 Am.Jur. pp. 738-739). There have been no rights of third parties intervening here that would justify the application of estoppel.