| Ark. | Nov 18, 1912
(after stating the facts). It is insisted for appellant that a trust resulted to James Keith, appellant's father, by operation of law, upon the purchase of the lot in controversy, and that appellee’s claim is barred by laches and limitations.
“When a man buys an estate and takes the deed in the name of a stranger, a trust results by operation of law to him who advances the purchase money. If, however, the nominal purchaser is the wife or the child of the person from whom the money comes, it is presumed to have been an advancement or a gift. But this presumption is not conclusive. It may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention of the person who furnished the money to buy the estate that the grantee should hold as trustee and not beneficially for himself.” Milner v. Freeman, 40 Ark. 67; Foster v. Treadway, 98 Ark. 452" date_filed="1911-03-27" court="Ark." case_name="Foster v. Treadway">98 Ark. 452; Spradling v. Spradling, 101 Ark. 451" date_filed="1911-11-20" court="Ark." case_name="Spradling v. Spradling">101 Ark. 451.
“But a determination of the question as to whether or not such trust resulted from the transaction depends entirely upon the intention of the parties themselves. When a husband pays the purchase money and takes the deed in the name of his wife, the law presumes that it was his intention to make a gift to her of thé land, because he is under obligations to provide for her.” Spradling v. Spradling, 101 Ark. 451" date_filed="1911-11-20" court="Ark." case_name="Spradling v. Spradling">101 Ark. 451.
Such a trust can not be established by a slight preponderance of the testimony, nor anything short of evidence that is clear, convincing and satisfactory. Foster v. Beidler, 79 Ark. 425; Chambers v. Michael, 71 Ark. 373" date_filed="1903-05-09" court="Ark." case_name="Chambers v. Michael">71 Ark. 373; Tillar v. Henry, 75 Ark. 451; 3 Pom. Eq. Jur., § 1040.
“And, although there is a presumption of the trust resulting to the party paying the consideration, the burden of proof on the whole case is upon the one who seeks to establish a resulting trust.” 1 Perry on Trusts, § 139; cases last cited supra.
Appellee was a child at the time of her mother’s marriage and lived for years in the family with her stepfather, treating him as a father and being treated as a child, and after many years away from the family home, which had been transferred to Little Rock, upon his invitation and solicitation, resumed her place in the family, where the same relations continued, she asisting him at the office and caring for him and being cared for by him in the family, until his death, and her stepfather under these circumstances stood in loco parentis to her, and the conveyance is presumed to have been a gift.
It is undisputed that the conveyance to herself and her mother was a gift to her mother of the property conveyed and always so regarded, and there is no sufficient reason to regard the conveyance to her otherwise, nor is the testimony sufficient to overcome the presumption that it was intended as a gift.
From the purchase of the lot to the death of appellee’s mother, James Keith looked after the lot for his wife, who was tenant in common with appellee, until her death, and from then to the time of her death, being himself, during such last period, a tenant by the curtesy and in common with appellee. It is true he controlled the property, paid the taxes, collected the rents therefrom and did not account to appellee therefor, but he did not dispute appellee’s title thereto, nor make any claim of title in himself, inconsistent with her ownership, and such action was referable to his duty to his wife and appellee in the relation occupied by him and could not amount to adverse possession.
Appellee was being cared for in the family and supported by her stepfather, and there was no reason why she should demand an accounting of the rents, and there was no knowledge of any adverse claim on his part brought home to her; and he had theretofore acknowledged her right upon the making of the gift and never thereafter disputed it. Under such circumstances, his possession, if he had been a stranger, being a tenant in common, could not have been regarded adverse to appellee, nor set the statute in motion against her. Singer v. Naron, 99 Ark. 451. It is not claimed that her suit was too long delayed after the death of her father, and possession taken by appellee.
The decision of the chancellor was right, and is affirmed.