| Ark. | May 12, 1913
(after stating the facts). The only theory upon which the appellee can be allowed the relief prayed for in this case is that his brother made him a gift of the land. We are of the opinion that the testimony showing such a gift is clear, unequivocal and convincing. Without going into detail in discussing the evidence, which is quite fully set forth in the statement, it is sufficient to say that it shows clearly that it was the intention of Francis X. Bogenshutz, who was in prosperous circumstances, to buy the land for his brother, John B. Bogenshutz, who was in rather destitute circumstances. The greatest affection existed between the brothers and the letters and oral testimony in the case show unmistakably that Francis Bogenshutz bought the land for his brother, John B. Bogenshutz, and gave the same to him. The notice which C. M. Davey gave to Rogers to vacate the premises and to deliver possession to the appellee must be taken as the act of Francis X. Bogenshutz, who paid to Davey the purchase money, and to whom Davey executed the deed. The land at the time of this notice was not the land of Davey, but the land of Francis X. Bogenshutz, to whom Davey had sold the same. So the investiture of possession in appellee was effected during the life of his brother, Francis X., the donor.
The letter of Francis Bogenshutz, written to his brother on June 23, 1910, in which he says, “You have been asking me from time to time to buy that piece of ground. Now, as you have it, you are not doing or trying to do anything for yourself,” shows, when taken in connection with the other evidence, that Francis X. had bought the land for and had delivered same to the appellee.
The question of resulting trust has no place in the record, for the undisputed evidence shows that Francis X. Bogenshutz furnished the money with which to purchase the land, and therefore no resulting trust in favor of appellee could exist. Hackney v. Butts, 41 Ark. 393" date_filed="1883-11-15" court="Ark." case_name="Hackney v. Butts">41 Ark. 393; Gaines v. Cannon, 42 Ark. 503" date_filed="1884-05-15" court="Ark." case_name="Gainus v. Cannon">42 Ark. 503; Bland v. Talley, 50 Ark. 71" date_filed="1887-11-15" court="Ark." case_name="Bland v. Talley">50 Ark. 71.
If these were nothing further shown than that Francis X. furnished the money to buy the land and intended thereafter to convey same to his brother, John B., then appellee’s contention could not be sustained, because there would be neither an express nor resulting trust, and the statute of frauds would apply to prevent the relief sought. But, as we have stated, the evidence shows a gift, which was completed by the donor, Francis X., in delivering the possession of the land to his brother, the appellee, with the intention of making a gift thereof to him. It was not simply a promise to give, but a completed gift. Acting under the belief that his brother had given him the land, appellee took possession thereof, and paid the taxes and made improvements thereon. See Young v. Crawford, 82 Ark. 33" date_filed="1907-02-18" court="Ark." case_name="Young v. Crawford">82 Ark. 33; Williams v. Neighbors, 155 S.W. 917" date_filed="1913-04-07" court="Ark." case_name="Williams v. Neighbors">155 S. W. 917, and cases there cited.
While there is no evidence to justify the finding of the court “that Francis X. Bogenshutz took the deed in his own name, as trustee of John B. Bogenshutz, and not as the owner thereof,” the testimony does clearly prove that Francis X. Bogenshutz bought the land, taking the title in his own name, intending at the time to give the same to his brother, and that he afterwards carried out this intention, by investing his brother with the possession of the land, and, when he did so, he intended that his brother should have full control and dominion over it, as the owner thereof.
Even though the court was mistaken in finding that Francis X. held the land as trustee, the judgment of the court is nevertheless correct in granting the relief prayed for, and it is affirmed.