(After stating the foregoing facts.) The doctrine of a resulting trust in favor of a third person paying the purchase-money of an estate is declared in Anon. (1683), 2 Vent. 361 (entitled Bird v. Blosse, 1 Vern. 366), as follows: “Where a man buys land in another’s name 'and pays money, it will be in trust for him that pays the money, though no deed declaring the trust, for the Statute of 29 Car. 2, called the Statute of Frauds, doth not extend to trusts raised by operation of law.” In Dyer v. Dyer, 2 Cox, 92, 93, 1 White and Tudor’s Lead. Cas. Eq. 203, Lord Chief Baron Eyre thus explained the doctrine: “ The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, — results to the man who advances the purchase-money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that, where a feoffment is made without consideration, the use
It is insisted that the plaintiff in error, in his rejected amendments, sought to establish a trust in the land by parol testimony. The agreement by the wife to hold the land for the benefit of the husband being express, it is contended that the case is within the statute of frauds. It will be noticed that the husband did not aver that the conveyance was made to the wife upon an express declaration by him or upon an express oral promise by her that the land should be held for the use of the husband. It is, however, averred that the husband did not intend to make a gift to the wife, and that the wife understood that no gift was intended, but understood that she was to hold the land for the husband and was to make a conveyance to him as he might desire. If the amendments are construed as alleging an express oral ■ agreement by the wife, it is difficult to see how the trust, conceding the trust, can be logically treated as a resulting trust. As we have said, a resulting trust is an implied-in-fact or inferred trust. It is, not based upon fraud or misrepresentation. On the contrary, the basis of the true constructive trust is fraud, actual or “constructive,” and our own cases, it must be conceded, seem to require actual fraud. It may be that the trust is not resulting, but constructive. This is the view of Dean Ames (see 20 Harv. Law Rev. 349) and of Professor Costigan of the Northwestern University (see 27 Harv. Law Rev. 437). According to these writers, the express oral promise takes the case out of the category of resulting trusts, and equity, upon the repudiation of the promise by the faithless grantee, imposes a trust to prevent the grantee from retaining the trust res as his own, applying the unjust-enrichment doctrine. These writers assert that a' dishonest and evil intention at the time of the conveyance and an evil and dishonest intention subsequently formed, if followed by a retention of the trust res, are one and the same — actual fraud.
However, in those jurisdictions where the resulting trust has not been abolished, it is generally held that the trust is resulting. In Barrows v. Bohan,
That our code excepts from the statute of frauds resulting and constructive trusts is not open to doubt. §§ 3735, 3739, 3740. That “ In all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties, either to imply or rebut a trust,” is expressly declared. § 3741. Section 3258, which declares, “A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is the issue to be tried,” has no application to the present case. It is unnecessary to assert that the rule of evidence prescribed by the code is restricted to the single instance there stated. The legislature of this State in the act of 1837 codified in section 3258, supra, did not abolish the doctrine of implied or resulting and constructive, trusts in this State. The doctrine has since been recognized in many cases. See Miller v. Cotton, 5 Ga. 341; Williams v. Turner, 7 Ga. 348. The second headnote in Brown v. Burke, 22 Ga. 574, is as follows: “ The purchase of land by a parent in the name of a child is presumptively an advancement; but that presumption is subject to be rebutted by evidence.” Trusts resulting by implication of law are discussed in Poulet v. Johnson, 25 Ga. 403, 411, and it was there said by Benning, J., that resulting trusts “ may still be manifested
The defendant in error relies upon the decision in Jackson v. Jackson, 146 Ga. 675 (
It is insisted in the brief of counsel for the defendant in error that the amendments were properly disallowed, because they were not verified as required by section 5640 of the Civil Code. This objection was not made to the allowance of the amendments at the time they were offered; and it appears from the recitals in the bill of exceptions that the judge disallowed the amendments, not because of the failure to attach the statutory affidavit, but upon the ground that the same set forth no defense to the action, either in law or in equity. The point is ruled adversely to the contention of the defendant in error, in Edwards v. Boyd, 136 Ga. 733, 738 (
Judgment reversed.
