THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Edward Bennett, Personal Representative of the Estate of Isaiah Bennett,        Appellant,

v.

Clement J. Vanderhorst,        Respondent.

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2005-UP-412
Heard May 11, 2005 � Filed June 27, 2005

AFFIRMED

Richard E. Fields, Barry I. Baker and Stephen P. Groves, Sr., all of Charleston, for Appellant.

Douglas H. Westbrook, of Charleston and S. Thomas Worley, Jr., of Mt. Pleasant, for Respondent.

PER CURIAM:  Edward Bennett, as personal representative of the Estate of Isaiah Bennett appeals the trial court�s ruling that the Estate was not entitled to property titled in Clement J. Vanderhorst�s name by way of a resulting trust or adverse possession.  We affirm.

FACTS

In 1967, Isaiah Bennett and his wife purchased the property located at 35 Race Street, Charleston, South Carolina.  A year later, Isaiah�s wife died.  Though Isaiah�s wife died intestate, leaving a portion of her ownership interest in the property to Arthur Grant, her son from a prior relationship, Grant conveyed all his right, title, and interest in the property to Isaiah. 

Isaiah deeded the property to his nephew Reginald Johnson in June of 1975.  Reginald had lived with Isaiah since his mother had passed away in 1971 when Reginald was 17 years old.  While he was in college, Reginald considered the Race Street property his home and returned to the property to live for a year after his college graduation.  In 1976 Reginald moved to New Jersey.  Reginald was unaware of the deed until after Isaiah�s death. 

Vanderhorst, another nephew of Isaiah, moved into 35 Race Street in the summer of 1976 and disputedly resided there until he married in 1984. The Race Street house was where relatives visiting Charleston would stay.  Several family members and Rosetta Simmons, who was declared by the probate court to be Isaiah�s common law wife, testified that they did not recall Vanderhorst residing at the property.  However, Vanderhorst claims he would stay with his mother in McClellanville when family visited.  One of Isaiah�s nephews testified that even Isaiah would not stay at the house during holidays because it was full of visiting relatives. 

A foreclosure action against the property was brought in August of 1979.  Notice of foreclosure against Reginald was served upon �his roommate (sic), Clement Vanderhorst, a person of sound discretion living at the residence,� though Vanderhorst denied receiving the documents.  Robin Jackson purchased the property at the foreclosure sale.

Upon learning of the foreclosure sale, Isaiah arranged for the repurchase of the property from Jackson for $20,000.  The title to the property was placed in Vanderhorst�s name.  Vanderhorst attended the closing with Isaiah and executed a mortgage and note for $21,500.  Vanderhorst also took out insurance on the property and deducted the mortgage interest from his tax returns from 1979 until the present.  In 1994, Vanderhorst, with Isaiah�s knowledge, refinanced the property, with the payout of $2,000 going into a joint bank account in Vanderhorst and Isaiah�s names.  Isaiah continued to make the mortgage payments, repairs and improvements to the home and live on the property.  Vanderhorst did not make any payments during Isaiah�s life. 

Following Isaiah�s death, Edward Bennett, as personal representative for his brother�s estate, brought an action to obtain title from Vanderhorst under theories of accommodation and adverse possession.  With approval of the trial court, the Estate later amended its complaint to include a claim for a resulting trust. 

The trial court held that as Vanderhorst was �the natural object of Isaiah Bennett�s bounty,� the inference was created that Isaiah intended a gift, and the Estate thus had the burden of proving a gift was not Isaiah�s intent.  The trial court determined the Estate did not meet its burden, and �Isaiah Bennett intended a gift or advancement to his nephew Clement [Vanderhorst] of the property upon his death.�  Furthermore, the court held the evidence would rebut the presumption of a resulting trust.  In addition, the trial court held the Estate�s claim for adverse possession failed. 

The trial court denied the Estate�s post-trial motions.  This appeal followed. 

STANDARD OF REVIEW

Whether an action is one at law or in equity is determined by the nature of the pleadings and the character of the relief sought.  In re Estate of Holden, 343 S.C. 267, 278, 539 S.E.2d 703, 709 (2000).  The appellate court will apply the appropriate standard of review for a particular issue in a case that contains both legal and equitable issues.  Eldridge v. City of Greenwood, 331 S.C. 398, 417, 503 S.E.2d 191, 200 (Ct. App. 1998). 

An action to determine a resulting trust sounds in equity.  Jocoy v. Jocoy, 349 S.C. 441, 444, 562 S.E.2d 674, 675 (Ct. App. 2002).  As such, we may determine facts in accordance with our view of the preponderance of the evidence.  Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).  While this standard permits a broad scope of review, we do not disregard the findings of the trial court, which saw and heard the witnesses and was in a better position to evaluate their credibility.  Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1990).

A claim for adverse possession is an action at law.  Miller v. Leaird, 307 S.C. 56, 61, 413 S.E.2d 841, 843 (1992).  �In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge�s findings.�  Townes Assocs., 266 S.C. at  86, 221 S.E.2d at 775.

LAW/ANALYSIS

Resulting Trust

The Estate claims the trial court erred in finding Isaiah intended a gift of the property to Vanderhorst, rather than creating a resulting trust.  We disagree. 

�Equity devised the theory of resulting trust to effectuate the intent of parties in certain situations when one party pays for property, in whole or in part, that for a different reason is titled in the name of another.�  Bowen v. Bowen, 352 S.C. 494, 499, 575 S.E.2d 553, 556 (2003).  As a general rule, when real estate is conveyed to one person and the consideration paid by another, it is presumed that the party who pays the purchase money intended a benefit to himself, and accordingly a resulting trust is raised in his behalf.  Id.  However, the presumption may be rebutted and the actual intention shown by parol evidence.  Id. 

In contrast, when the conveyance is made to a spouse or child, or to any other person for whom the purchaser is under legal obligation to provide, no such presumption arises.  Bowen, 352 S.C. at 499, 575 S.E.2d at 556.  In that case, the presumption is that the purchase was designated as a gift or advancement to the person to whom the conveyance is made.  Id.  This presumption may also be rebutted by parol evidence or circumstances showing a contrary intention.  Id.

We find that even if Vanderhorst was not the natural object of his uncle�s bounty and the presumption of resulting trust applies, Vanderhorst successfully rebutted this presumption. 

In Larisey v. Larisey, 93 S.C. 450, 77 S.E. 129 (1913), an uncle purchased property in the nephew�s name, but he then took and held possession of the property, made improvements, and paid all of the taxes.  At the time of the purchase, the uncle was a bachelor and did not intend to marry.  The uncle expressed his intention about giving the property to his nephew to a witness at the signing of the deed.  He also reiterated the intended gift in a letter introduced at trial.  The supreme court found the uncle intended a gift of the property to his nephew, rebutting the presumption of a resulting trust.  Id.  at 452-53, 77 S.E. at 129-30. 

The facts in the present case are similar to those in Larisey.  Like the uncle in Larisey, Isaiah was also unmarried at the time he purchased the property in Vanderhorst�s name.  Isaiah had previously attempted to gift a favored nephew with the property by deeding the property to Reginald.  At the time of the foreclosure and reaquisition of the property in Vanderhorst�s name, Vanderhorst had been living with his uncle for three years while Reginald was living in New Jersey.  Furthermore, like the uncle in Larisey, Isaiah also spoke of his intent.  John Jones, former neighbor, specifically recalled Isaiah telling him that upon Isaiah�s death, the house would belong to Vanderhorst.  In addition, Mildred Bennett, Isaiah�s sister-in-law, testified Vanderhorst told her that Isaiah �told him that the house was going to him.� 

Based on the evidence stated above, we affirm the holding of the trial court that Isaiah intended a gift of the property at 35 Race Street to his nephew Vanderhorst. 

Adverse Possession

The Estate argues the trial court erred in failing to find Isaiah acquired the property by adverse possession.  We disagree. 

Adverse possession may be established under a ten-year statute of limitation.  See S.C. Code Ann. � 15-3-340 (2005).  To constitute adverse possession, which results in obtaining title to the disputed property, the possession must be continuous, hostile, open, actual, notorious, and exclusive for the requisite period.  Getsinger v. Midlands Orthopaedic Profit Sharing Plan, 327 S.C. 424, 430, 489 S.E.2d 223, 226 (Ct. App. 1997).  The claimant�s possession must be hostile to not only the true owner, but also to the rest of the world so as to indicate his exclusive ownership of the property.  Id.  The burden of proof of establishing adverse possession is upon the party asserting such a claim.  Id. at 428 489 S.E.2d at 225.  The party asserting a claim of adverse possession must establish the claim by clear and convincing evidence.  Id. at 429, 489 S.E.2d at 225. 

Isaiah did not exercise all the acts of ownership over the property as if he were the sole owner.  Though Isaiah paid for, maintained, and lived on the property until his death, he titled the property in Vanderhorst�s name.  He also informed Jones and Vanderhorst of his intentions to gift the property to his nephew.  In addition, Isaiah allowed Vanderhorst to seek the tax deductions for the mortgage interest on the property and did not object when Vanderhorst refinanced the property.  Finally, although evidence of Vanderhorst�s improvements on the property is minimal, he cut the grass, cleaned the house, and installed handicap handrails in the shower.  Therefore, we find the Estate failed to provide clear and convincing evidence that Isaiah acted in open, notorious, hostile, continuous, and exclusive possession of the property. 

CONCLUSION

For the reasons stated herein, the trial court�s decision is

AFFIRMED.  

GOOLSBY, HUFF, and KITTREDGE, JJ., concur.