McCue v. Gallagher

23 Cal. 51 | Cal. | 1863

Cope, C. J.

delivered the opinion of the Court-Norton, J. concurring.

We think the facts stated in the complaint in this case do not' establish a resulting trust. The property was purchased by the plaintiff, but before the conveyance was executed he transferred to his brother the benefit of the purchase, the latter agreeing to pay the purchase money. The conveyance was made directly to the brother, and the only inference from the facts stated is that it was intended for his use. The facts of the case are incompatible with the idea of a resulting trust in favor of the plaintiff. Such trusts are created by implication of law, and not upon the presumption that he who pays the purchase money intends the purchase for his own benefit. The presumption may be rebutted, however, and a contrary intention shown; and the intention at the time of the conveyance must necessarily control. The trust must exist then, or not at all.

It is possible that the plaintiff may enforce his claim as a lien upon the property; but this question is not before us, and it is unnecessary to decide it.

The judgment is affirmed.