40 Cal. 634 | Cal. | 1871
delivered the opinion of the Court, Crockett, J., and Temple, J., concurring.
The defendant purchased the land and the flock of sheep, paid one half of the purchase money, took the title in his own name, and gave his note, secured by mortgage of the lands, for the remaining half of the purchase money. The plaintiff alleges that it was verbally agreed between him and the defendant that they should be jointly interested in the purchase, and that the title should be taken in the name of the defendant, for the benefit of both of them. It is not alleged that the plaintiff paid any part of the purchase money, but he avers that he signed and delivered to the defendant a promissory note, which was blank as to date, payee, amount and rate of interest, and gave him authority to fill the blanks; and that the note was to be used by the defendant in effecting a loan of money with which to
It is well settled that a resulting trust may be established by parol evidence; and the principle is equally well settled that such a trust will not arise, unless the plaintiff paid the whole or some part of the purchase money, and unless the money so paid formed, at the time, the consideration, or a part of the consideration of the purchase. (Bottsford v. Burr, 2 John., Ch. 409; Case v. Codding, 39 Cal. 191; 2 Sto. Eq. Juris., § 1,201; Hill on Trust, 150.)
The case does not come within the principles of Boyd v. McLean, (1 John., Ch. 582); and Millard v. Hathaway, (27 Cal. 119); as in each of those cases it was clearly shown, that the money with which the purchase was made, had been loaned by the defendant to the plaintiff for that purpose, the defendant taking the title as security for the repayment of the loan. The making and delivery of the blank note does not show a loan, and there is no fact in the case pointing to that conclusion.
The pasturage of a portion of the sheep by the plaintiff, his sale of them, and his return of the proceeds to the defendant, together with a sum of his own money, though tending to sustain the averment that the parties had agreed to become jointly interested in the purchase, cannot take the place of an averment, that the plaintiff paid a portion of the purchase money at the time of the purchase; nor would such probative facts sustain that averment had it been made.
Judgment affirmed.
