| Or. | Dec 17, 1907
delivered the opinion.
The legal title of the property in controversy passed to Mrs. De Roboam by her purchase at the foreclosure sale, and the subsequent execution and delivery to her of a sheriff’s deed therefor. She did not convey it during her lifetime. Prima facie therefore the title passed to defendant under her will. Plaintiff insists, however, that the purchase was made by his wife for his benefit, and that he paid the purchase price, and the title taken in her name under an agreement, whereby a resulting trust was created in his favor.
1. The questions for decision therefore are, whose money paid for the property, and if it was paid for by plaintiff was the title taken in the name of his wife, under such circumstances as will rebut the presumption that it was intended as an advancement? As a general rule, where one person purchases real estate and pays the purchase price, but takes the deed in the name of another, a resulting trust ¿rises by operation of law in favor of the one who furnished the purchase money.
2. The person in whose name the title is taken becomes a trustee for the one who paid the money, and the trust so created is exempt from the operation of statute of frauds and may be shown by parol.
All the parties to the several transactions out of which the controversy arose are dead, excepting plaintiff. líe can neither read nor write, and is compelled to testify from an imperfect recollection of matters occurring 20 years ago. He says that he desired to purchase the property himself at the foreclosure sale, but was advised by his attorney that he could not do so because he was administrator of his sister’s estate, although he had in fact been removed some months previous, of which, however, he claims to have been ignorant, and acting upon the advice of his counsel he requested his wife to bid the property in for him. He does not claim that he actually furnished an]*- part of the purchase price, or was able to do so, but his contention is that before the sale he arranged with A. L. Reuter to furnish the money, and that Reuter did so, and that he subsequently repaid him. But in this it seems quite clear that his memory is at fault. The record shows that no money whatever was paid at the time of the sale, except a few dollars for costs, furnished, presumably, by the purchaser, Mrs. He Roboam. The claim of the execution creditor Solomon was satisfied by the mortgage given by Mrs. De Roboam on her separate property some months prior to the sale, and an additional mortgage to secure the same indebtedness on the hotel property made the day thereafter. This mortgage remained in the name of Solomon, and was not acquired by Reuter until December 15” following. It is therefore manifest that Reuter did not furnish
4. There is evidence on behalf of plaintiff, which he claims tends to show that he subsequently paid the Solomon mortgage, and the other liens on the property. But these payments were made out of the proceeds of the business conducted by himself and wife, and there is much evidence tending to show that she was the head of the firm. But, however that may be, a subsequent payment by plaintiff of the indebtedness incurred by his wife for the purchase price of the property, would not be sufficient to create a resulting trust in favor of him. It is indispensable to the establishment of a trust that payment of the purchase price should actually be made by the person asserting the trust or a binding obligation therefor incurred by him as part of the original transaction at or before the time of conveyance. Payment at some subsequent time is not sufficient: Pomeroy, Eq. Juris. § 1037; Sisemore v. Pelton, 17 Or. 546" court="Or." date_filed="1889-05-03" href="https://app.midpage.ai/document/sisemore-v-pelton-6895431?utm_source=webapp" opinion_id="6895431">17 Or. 546 (21 Pac. 667); Taylor v. Miles, 19 Or. 550" court="Or." date_filed="1890-11-03" href="https://app.midpage.ai/document/taylor-v-miles-6895685?utm_source=webapp" opinion_id="6895685">19 Or. 550 (25 Pac. 143). The plaintiff does not claim that he entered into any binding obligation with Reuter at or before the purchase of the property by his wife to repay him the purchase money, but he expressly says that Reuter refused to loan him any money unless his wife would go security, and the record shows that his wife did not incur any liability to Reuter until April 2, 1886, after she had secured the sheriff’s deed for the property.
5. In view of the rule that evidence to establish a resulting trust must be clear and convincing, and when the testimony is in doubt, or the evidence conflicting, the legal title must prevail (Snider v. Johnson, 25 Or. 328: 35 Pac. 846), we are of the opinion that plaintiff has failed to make out a case entitling him to relief in equity, and the decree of the court helow must be reversed, and the complaint dismissed. Reversed.