In 1858 Jоseph Franklin Van Pelt married Miss Mary Maggie Litaker, and this union continued until 1885, when Mrs. Van Pelt died. The husband continued to live until April, 1896, when he died. There was never any issue born of this mаrriage, and the said Joseph died without leaving issue. The plaintiffs in this action are the next of kin and heirs at law of Mrs. Van Pelt.
Mrs. Van Pelt inherited from her father, and was thе owner in her own right of, lands lying in Cabarrus county, a part of which was sold in T867 to one Black-welder, to be paid for in gold, and a part was sold to one Sumrow, and conveyed to her in part payment for real estate belonging to said Sumrow, in Statesville.
*519 It is alleged by plaintiffs that the money received from Blackwelder for the lands of Mrs. Van Pelt also went into the payment for the Sumrow property, in States-ville, and that hy the conveyance of the one tract to Miss Ellen Jаne Sumrow, and by the money received from Blackwelder for Mrs. Van Pelt’s lands, the whole of the purchase price for the Sumrow lands in Statesville was paid.
It is further alleged by plaintiffs that Mrs. Van Pelt agreed to this sale and conveyance of her land, upon Mr. Van Pelt’s agreeing to purchase the Sumrow property in Statesville for her, but that, in violation of this promise and agreement, the said Joseph F. procured the deed to be made to him, conveying to him a feе simple estate in said property, in fraud of the rights of the wife. The plaintiffs, as the heirs at law of Mrs. Van Pelt, commenced this action on the 29th of July, 1896, to set up and declare the trust and recover said lands or the value thereof. At the close of plaintiffs’ evidence, defendant demurred ore terms.
The evidence introduced by plaintiffs, we think, tended to establish the trust alleged.
Dula
v..
Young,
The several transactions mentioned, of selling the *520 lands of Mrs. Van Pelt and the purchase оf the Sum- - row property, all took place before the adoption of the Constitution of 1868, and the Code of Civil Procedure.
Plaintiffs’ cause of aсtion, if they have one, arose at that time and is governed by the law as it then existed. Mrs. Van Pelt never had the legal title to the Sumrow property, but only the right in equity tо have her husband declared a trustee of said property and a decree compelling him to convey. This being so, the statute of presumptions — Chapter 65-, Section 19, Revised Code— affects plaintiffs’ right to recover, when pleaded and relied upon as in this case.
It is true that plaintiffs had no right of action (and, indeed, no cause of action), until the death of Mrs. Van Pelt under whom they claim. At that time they succeeded to her estate by descent. And although thеir
right
of action accrued at that time, their
caiose
of action accrued at the time the husband, Joseph F., took the deed for the Sumrow property to himself, instead of taking it to his wife, as plaintiffs allegеd he was to do.
Dula
v. Young, supra;
Lyon v. Akin,
In express trusts no statute as to time runs, — that is, a trust declared in the instrument creating the trust and acceptеd by the trustee — until the trust relation is broken.
Hodges
v.
Council,
But this is not what is known as an express trust, but it is what is called a constructive trust; that is, the facts show such conduct on the part of the defendant that a court of equity, or court exercising equitable jurisprudence, will declare him a trustee.
These trusts are only declared where there has been bad faith — -fraud, actual, presumptive or constructive. 1 Pomeroy Eq. Jur., Sections 155, 1030, 1058; 2 Pomeroy, 1044; 1 Lewin on Trusts, star p. 180, and note 1.
As in this case, it was not the sale of the wife’s lаnd, nor the purchase of the Sumrow property, that the wife or the plaintiffs have anything to complain .of. But it was the falsehood — the bad faith of the husband in taking title to himself, and not to his wife, as he promised to do. If A buys land with the money of B, and instead of taking the title to B, as he promised to do, takes it to himself, equity will declare A a trustee for B. The law is the same between a man and his wife as between strangers, when the facts are established.
But as the law at the time the facts in this сase transpired made the personal estate of the wife, upon its coming into his possession, that of the husband, and money arising from the sale of the wife’s lands his, unless he received it under a proniise, and in trust, as *522 plaintiffs allege was done in this case, the purchase would he with the husband’s own money, and there would bе no fraud and no consideration to support a declaration of trust. In this case the evidence tended to show that one tract of land belonging tо the wife was conveyed directly to E. J. Sumrow, in part payment for the Sumrow property in Statesville. So that no money could have been received by the husband for this tract of land. And if this is true there seems to be no reason why a trust would not be declared as to this.
But we have said it is not necessary that we should pass uрon this question. While the lapse of time and the statute does not affect the rights of parties to an express trust until there is a termination of the trust, it seems not tо be so as to constructive trusts — such as we hold this to be. As to such trusts as these — constructive trusts — the statute is emphatically one of repose.
Houck
v.
Adams,
And while it is suggested that
Summerlin
v.
Cowles,
Upon examining the case of Alston v. Hawkins, we find that it does not overrule Summerlin v. Cowles to the extent of making the judgment of the Court in that case erroneous. Indeed, it sustains thе correctness of the judgment in that case, which was founded upon the operation of the statute of limitations, this being the *523 only statutory defence set up iu that case. But Alston v Hawkins says that what was said by the learnеd Chief Justice, in discussing Summerlin v. Cowles, as to the statute of presumptions, was not necessary to the decision of the case — was obiter — and that part of the opiniоn is declared not to be in harmony with many decisions of this Court there cited, and is overruled. Alston v. Hawkins is the latest deliverance of this Court, and is a precedent, and is nоw held to be the true exposition of the law of presumptions.
Upon the death of Mrs. Van Pelt, the husband, Joseph F., remained in possession under color of title. This possession was adverse to the plaintiffs. The law presumed it to be so, without anything further being proved.
Alexander
v. Gibbon,
Affirmed.