This is an action of ejectment in the' usual form, for one hundred and thirty acres of land in Stone county, by the heirs at law of Elbert N. Butler, deceased, against the appellant and his tenant, in possession of a portion of the premises.
The appellant, Daniel Carpenter, filed the following answer:
“Comes now the defendant, Daniel Carpenter, and for his separate answer to the plaintiff’s petition, denies each and every allegation therein contained, except such as are herein admitted.
“Defendant admits that the plaintiffs are the heirs at law of the said E. N. Butler, now deceased, and that he is now and for a long time prior to the ouster herein alleged has been in possession*of a portion of said real estate but not to the exclusion of the plaintiffs herein; nor their ancestor, the said E. N. Butler.
“And for further defense to plaintiffs’ action this defendant avers, that during the life of the said E. N. Butler (common ancestor of plaintiffs), to-wit, about 1880, this defendant was the owner in common with his co-tenants of the real estate
“That this defendant having the largest interest in said real estate and not being at the time financially able to pay for the interests of his co-tenants and the cost and expense of said partition, and in order to prevent the sacrifice of said real estate at such sale, entered into an agreement with the said E. N. Butler, the ancestor of the plaintiffs, by which verbal contract said land was to be bid in by and stricken off to the said E. N. Butler, who contracted and agreed with this defendant that he would pay in on said sale in cash the sum of two hundred and fifty dollars to be applied to the payment of the cost of said partition and the payment of defendant’s co-tenants, their one-third of such purchase price; that this defendant agreed to and did receipt to the said E. N. Butler for his two-thirds of said purchase price without the payment to him of any money or valuable thing whatever. But in consideration therefor the said Butler agreed to take the title deed to said premises and to hold the legal title thereto but in trust for this defendant to the extent of an undivided half interest in and to said real estate in plaintiff’s petition described, to-wit: The northwest fractional quarter of the northwest fractional quarter, southwest frac
“Wherefore, this defendant prays the court to decree that plaintiffs be divested of the legal title to the undivided one-half of said premises so owned in equity by this defendant, and that he be vested with the legal title thereto and that the said lands be partitioned between plaintiffs and defendant as their several interest shall appear, and if said land can not be partitioned in kind without great damage to the value thereof, the same be sold and the proceeds of such sale be divided between the plaintiffs and defendant as their interest shall .appear, and for such other and further relief as to the court shall seem meet and just.”
To this answer the plaintiffs filed a demurrer, assigning as reasons therefor the following:
“Eirst. Because said answer does not set up any defense to plaintiffs’ cause of action.
“Second. Because said answer shows on its face that defendant’s supposed and alleged contract is void.
“Third. Because defendant’s alleged equitable title is
This demurrer was sustained by the circuit court, and defendant refusing to plead further, judgment was entered for plaintiffs, and the defendant after the usual preliminaries has brought the case here for review.
The first ground of plaintiffs’ demurrer is clearly without merit, unless it be that the facts set up in defendant’s answer are not unavailing to him, hy reason of the operation of the statutes invoked by them in their second or third ground of demurrer, for we must treat, without comment or discussion, as settled law in this State, the proposition that an equitable title well pleaded to an action of ejectment, based upon the legal or paper title, is a good defense. The third ground of demurrer, “that defendant’s alleged equitable title is stale and barred by the statute of limitations,” may also be disposed of by the simple suggestion that the sole purpose of the statute of limitations by its very language is to bar actions, and not to suppress or deny matters of defense, whether equitable or legal, and that, too, when, as in this case, the equitable defense is accompanied by a prayer for affirmative relief. The purpose of the statute is to quiet the assertion of old, stale and antiquated demands, but it has never been thought that- its intended object was to go further and to deny a just and meritorious defense, whether the facts of that defense had their birth in the first, tenth or twentieth year before the call for the assertion of those facts was made necessary by some hostile claim, demand or proceeding. A ground of defense never becomes stale or barred by the statute of limitations, but grows in strength and force as the limitation period against a right of action widens. The statute of limitations may be used by a defendant as a shield for his protection or defense, but is never to be turned upon him as a sword with which to compass his defeat.
Though under the operation of section 3416, Eevised Statutes 1899, as contended by respondent, all declarations or creations of trusts or confidence of land are to be held as void unless manifested or proved by some writing, it must be borne in mind that by the next section (3417) trusts resulting by implication of law, on account of the acts of the parties, or their relations to each other, are excepted, and thus the rigor of the general rule, designed to prevent frauds, is relaxed, that a fraud, by its invocation, may be prevented.
The answer in this case, when properly considered and construed, does not, as contended by respondent, set up and plead that the plaintiffs’ ancester, E. N. Butler, made with him a mere naked parol agreement to buy land in trust for defendant ; or that he should convey to defendant land, or an interest therein, of which he was then, or was to become owner, a state of facts that clearly would place /the agreement within the operation of section 3416 of the statute of frauds; but the agreement pleaded is that plaintiffs’ ancestor was to bid in lands, then belonging to defendants and others, that was to be sold, through the sheriff, under an order of court for the partition and division of the proceeds thereof among its then respective claimants, and that the plaintiffs’ ancestor should take and hold the legal title thereto under the sheriff’s sale, but in trust for defendant, to the extent of an undivided one-half interest, which interest defendant was to and did pay for, by way of a receipt given, as for his part of the proceeds of the sale of the land, by the sheriff, and that each party was to hold, use and occupy the land as tenants in common.
The answer further states the fact to be that plaintiffs’
Respondents’ counsel is clearly mistaken in his estimate and view of the matters pleaded. When the facts are, as disclosed by the answer filed herein, that the purchase price of the land or a part thereof, was paid by one party and the legal title thereto taken in the name of another, a trust by operation of law, arises from that fact, in favor of the party making the payment, and that, too, in the absence of an express agreement to that effect, between the parties to the transaction, and without regard to the question whether fraud, in the original conception or execution of the transaction was intended or charged. The trust arises from the facts and conditions themselves, and it has never been the purpose of the statute of frauds to suppress those facts because not evidenced by some written memoranda signed by the party to be charged. Resulting trusts, or those arising by operation of law, axe not within the statute of frauds. If the parol agreement pleaded regarding the purchase of the land may be said to be within the statute of frauds, a resulting trust arose in favor of defendant, by the execution of the agreement, that operated to relieve the transaction from the influence of the statute. If the averments of defendant’s answer are true, he is entitled to the relief sought, and the action of the circuit court in sustaining plaintiffs’ demurrer thereto, and proceeding with the case to judgment against defendant was erroneous, and its judgment will be reversed, and the cause remanded, for trial upon the issues made by the answer.