VICKY HARVELL, as next friend of          )
JEREMY TRAMMELL WILLIAMS,                 )
                                          )
      Plaintiff/Appellee,                 )
                                          )   Appeal No.
                                          )   01-A-01-9706-CH-00258
VS.                                       )
                                          )   Maury Chancery
                                          )   No. 95-673
MARY WILLIAMS,                            )

      Defendant/Appellant.
                                          )
                                          )                FILED
                                                               January 14, 1998

                     COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE Appellate Court Clerk



APPEALED FROM THE CHANCERY COURT OF MAURY COUNTY
AT COLUMBIA, TENNESSEE

THE HONORABLE JIM T. HAMILTON, JUDGE




WILLIAM S. FLEMING
207 West Eighth Street
P. O Box 90
Columbia, TN 38402-0090
      Attorney for Plaintiff/Appellee

JANET C. DAVEY
711 North Garden Street
P. O. Box 631
Columbia, TN 38402-0631
       Attorney for Defendant/Appellant




                            AFFIRMED AND REMANDED




                                              BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.


                                OPINION
              The trial court declared that a piece of residential property held in the

name of the defendant was subject to the equitable remedy of a resulting trust for the

benefit of her grandson. The defendant argues on appeal that the plaintiff was not

entitled to such a remedy because he did not meet the required burden of proof, and

because of the doctrine of unclean hands. We affirm the trial court.



                                            I.



              In November of 1994, Richard Frank Williams purchased at auction a

residential lot in Columbia and a mobile home, paying $30,000 in cash for the

property. The deed named his mother Mary Williams, as grantee. Though the deed

recited receipt of “the sum of TEN DOLLARS ($10.00) and other good and valuable

considerations,” the parties agree that Mrs. Williams did not actually furnish any

consideration for the property, and she testified that she had no idea that her son had

bought any property until a deed with her name on it arrived in the mail.



              Mr. Williams moved into the home with his girlfriend Vicky Harvell, and

their son Jeremy Trammel Williams, who had been born on July 18, 1989. Mr.

Williams and Ms. Harvell had been living together since 1988. They never married,

but Jeremy was legitimated by an order of the Juvenile Court of Maury County on

November 8, 1991. He was the only child of Richard Frank Williams.



              Richard Williams died on August 6, 1995 at the age of twenty-nine.

After his death, Mary Williams allegedly threatened to have Vicky Harvell and Jeremy

removed from the property. Ms. Harvell subsequently brought suit as next friend of

Jeremy to impose a resulting trust on the property for the child’s benefit. Mary

Williams argued at trial that the property was a gift to her, and that her son intended

for her to retain both the legal and the equitable title.




                                          -2-
              The trial court heard testimony by Vicky Harvell, and by the decedent’s

father, his mother, his sister, and his best friend. The court concluded that it was the

decedent’s intention that the property go to Jeremy, his only child, and it established

a resulting trust for Jeremy’s benefit. This appeal followed.



                         II. The Adequacy of the Evidence



              A resulting trust arises from a transaction where one party becomes

vested with legal title to property under circumstances that obligate that party to hold

the legal title for the benefit of another. In Re Estate of Roark, 829 S.W.2d 688, 692

(Tenn. App. 1991). Such circumstances include, “where the property is purchased

and the title taken in the name of one person, but the purchase price is paid by

another; and where the purchaser pays for the land but takes the title in whole or in

part in the name of another.” Browder v. Hite, 602 S.W.2d 489, 492 (Tenn. App.

1980), quoting Gibson’s Suits in Chancery, Fifth Edition, Section 977.



              The burden of proof required to establish a resulting trust is always on

the plaintiff, and the proof must be clear and convincing to establish such a trust by

parol evidence, in the face of the terms in a written instrument. Estate of Wardell v.

Dailey, 674 S.W.2d 293, 295 (Tenn. App. 1983). The appellant relies upon apparent

contradictions in the testimony of the various witnesses at trial to argue that the proof

was not clear and convincing that Richard Williams intended for his son to take a

beneficial interest in the property.



              The testimony of Ms. Harvell, of Mr. Williams’ father, and of Andre

Amos, the decedent’s best friend, were all to the same effect, that the decedent told

them that he bought the property to provide a home for his son, and so that if anything

happened to him, Jeremy would have a place to stay. Ms. Harvell and Mr. Amos




                                          -3-
further indicated that Mr. Williams did not take the deed in his own name because he

wanted to avoid taxes and because he was afraid of government seizure.



              The decedent’s mother, Mrs. Mary Williams, and his sister, Wanda

Williams, denied that Mr. Williams had ever mentioned to them that he wanted Jeremy

to have the property. They testified to the effect that he put the property in his

mother’s name because he didn’t want Ms. Harvell locking him out, and he didn’t want

another man living with her on his property if he was out of the picture.



              This apparent contradiction in testimony can be best explained by

presuming that both versions of Mr. Williams’ intentions are accurate. He wanted the

property to go to his son, but he also didn’t want Ms. Harvell to have the power to

dispose of the property in a way that might be contrary to his own interest or that of

his son. If he sought the advice of an attorney, he might have been advised to set up

an express trust for the benefit of Jeremy, but he apparently acted without legal

counsel.



              All the witnesses are in agreement that the decedent was very close to

his son, that the two enjoyed each other’s company, that they did many things

together as father and son, and that providing for his son was a high priority for Mr.

Williams. The decedent was very indulgent with toys and gifts. He paid child support

into the court so that Jeremy, who has an asthmatic condition, would qualify for

medical insurance through Tenncare. He bought a small candy store for Ms. Harvell

so she would have a source of income to support Jeremy if Mr. Williams could no

longer provide for him.



              There is no evidence in the record that in deeding the property to his

mother, Mr. Williams intended for her to move into the mobile home, to evict Jeremy,

to collect rent from Ms. Harvell, or to do anything whatsoever with the property except


                                         -4-
to hold the deed. In fact, Mrs. Williams testified that she had no intention to move into

the home after her son’s death, and only began thinking of doing so after she and Ms.

Harvell had a falling-out.



              Richard Williams visited his mother on a daily basis, and there is no

doubt that he was devoted to her. Mary Williams lived in the same house for most of

her life. The house was not titled in her name, but in the name of a cousin in

Nashville. Mrs. Williams did not pay rent, but did pay the taxes on the property. Over

the years, Richard Williams put a new roof over the home of his mother, put new

floors in the kitchen, bedroom and porch, and arranged for gas heating to replace an

old wood heating stove. The implication is clear that he intended for her to be

comfortable in the house she was already living in, and this court finds the evidence

clear and convincing that he also intended that his son be comfortably and securely

housed in the residence he provided.



                             III. The Clean Hands Doctrine



              Testimony at trial indicated that while Richard Williams held down

several legitimate jobs before his death, including operating a car wash and detailing

shop with his father, and sanding fenders for Saturn, he also allegedly dealt in illegal

drugs. The proceeds from his drug-dealing apparently enabled him to pay cash for

the property in dispute, and he was worried that the discovery of his illegal activities

could lead to negative tax consequences or forfeiture of the property. He therefore

decided not to buy the property in his own name.



              The appellant reminds us of the maxim of equity that “He who comes

into equity must come with clean hands.” We note that the doctrine of unclean hands

must relate to the particular transaction which is the subject of the ligitation, and not

to collateral matters. Chappell v. Dawson, 202 Tenn. 672, 676, 308 S.W.2d 420, 421


                                          -5-
(1957). Thus, the inequitable conduct at issue here is not the alleged drug dealing by

the decedent, but his attempt to fraudulently place the property beyond the reach of

potential creditors, such as the I.R.S and the Department of Justice.



              If Mr. Williams himself were before this court, and attempting to regain

the property for his own benefit, then his prior conduct would prevent him from

enlisting the aid of equity to obtain the remedy he seeks. “. . . [I]t is settled in this

state by an unbroken line of decisions that a party guilty of fraud is not entitled to be

relieved from its consequences.” Thomas v. Hedges, 27 Tenn. App. 585, 592, 183

S.W.2d 14, 16 (1944); McCallie v. McCallie, 719 S.W.2d 150, 154 (1986). However,

the plaintiff in this case is a seven-year old boy who is not guilty of any wrongdoing,

who has lost the protection of a loving father, and whose interest in a stable residence

is now held hostage to a dispute between his mother and his grandmother. We do

not believe that it is equitable to impose the doctrine of clean hands upon him.



              The appellant points out that the case of Thomas v. Hedges, supra, also

stands for the proposition that the fraud of the grantor binds his heirs:

              “[t]he test is whether the ancestor, if alive, could have
              repudiated the deed for the fraudulent purpose . . . . If he
              could not do this, then the complainants as his heirs could
              not; for they are in privity of estate with him. They claim only
              through him as heirs, and hence have no higher or greater
              rights than he had.”

183 S.W.2d at 16, 27 Tenn. App. at 591-2.



              While we know of no case that has specifically reversed Thomas v.

Hedges on this question, our Supreme Court has indicated that even if the general

rule as enunciated above is valid, it is not absolute.



              In Burleson v. McCrary, 753 S.W.2d 349 (Tenn. 1988), the Court dealt

with a situation where the remaining heirs of a grantor sought to establish a resulting

trust on property that the grantor had deeded to two of the heirs before his death, in

                                          -6-
order to prevent the property from passing through his estate, where it would be

subject to his medical debts. Though the appellant insisted that the heirs “stand in no

different position from that which [the grantor] occupied,” the court stated:

              “It is pointed out by appellant that the grantor may have had
              an illegal purpose in mind, to frustrate legitimate creditors; but
              among his children no policy of the law precludes the granting
              of a resulting trust, particularly where the grantee was a party
              to the alleged improper purpose and had knowledge thereof.”

753 S.W.2d at 353.


              While there is no proof in the present case that Mary Williams was a

party to her son’s alleged improper purposes, or that she had actual knowledge of

them, her contention that he intended to make her a gift of the subject property is not

supported by any evidence. We therefore agree with the trial court that the equities

of this case support the granting of a resulting trust to Jeremy Williams.



                                  IV. Consideration



              The appellant makes one other argument, which we believe may be

disposed of easily. She argues that the recital of pecuniary consideration in the deed

creates a conclusive presumption, in the absence of fraud or mistake, of an intention

that the grantee is to take the beneficial interest in the estate. However, we agree

with the appellee that the presumption in question arises to bind the grantor only

where the grantor himself is seeking to obtain the beneficial interest, in the face of his

own recital of consideration. See Greene v. Greene, 38 Tenn. App. 238, 272 S.W.2d

483 (1954); Latshaw v. Latshaw, 787 S.W.2d 9 (Tenn. App. 1989).



              In the present case, the grantor received actual consideration for title to

the property, but is not arguing that he retained the equitable interest in the face of

that consideration, and the grantor is in fact not even a party to these proceedings.

The presumption would apply if Richard Williams had obtained the title to the property



                                          -7-
in his own name, conveyed it to his mother by a deed which recited consideration, and

then sought to retrieve the equitable title for his own benefit.



                                           V.



              The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Maury County for further proceedings consistent with this opinion.

Tax the costs on appeal to the appellant.




                                           _____________________________
                                           BEN H. CANTRELL, JUDGE


CONCUR:



_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


_______________________________
WILLIAM C. KOCH, JR., JUDGE
