62 Miss. 531 | Miss. | 1885
delivered the opinion of the court.
This is a bill filed by the appellee against the appellants, who are the heirs-at-law of one W. G. Thomas, to establish a resulting trust in certain lands. It appears that the land was owned by the State of Mississippi, having been acquired at a sale for taxes, and that the appellee and W. G. Thomas agreed to become the purchasers thereof, each paying one-half .of the purchase-money, the title to be taken in the name of W. G. Thomas, who was to convey an undivided half interest in the land to the appellee. A short time before the purchase the appellee sold to W". G. Thomas a mule, the price of which was within a few cents of the half of the purchase-money of the land, and at the time of the sale it was agreed that the price of the mule should be paid by W. G. Thomas for the appellee as his part of the purchase-money for the land. Soon after the land was purchased the appellee and W. G. Thomas began to convert the timber growing thereon into boards and shingles, each paying one-half of the expense and receiving one-half of the proceeds of sales. W. G. Thomas recognized the right of appellee to one-half of the land and agreed to make him a conveyance, but neglected doing so and died holding the legal title to the whole.
The above facts are established by the decided preponderance of the evidence.
Viewed as an express contract between the parties, the same is incapable of being decreed to be specifically performed, because it was not evidenced by writing. The single question is whether on the facts proved a trust resulted by operation of law in favor of the appellee.
It is well settled by authority that where, on the facts proved, a trust would result in the absence of an express agreement, the fact that such agreement was made will not prevent the trust from arising.
The test of the existence or non-existence of trusts of this character is the ownership of the consideration paid, coupled with the intention of the parties, and since trusts o.f this character are not within the statute of frauds, it is competent to make parol proof of
To the existence of a resulting trust it is necessary that in the transaction of purchase the money or credit of the beneficiary should be used, but a constructive payment by him is equally efficacious as one made by him in person. Thus if the person who actually makes the payment of the money does so under an agreement to lend the amount to the other and pays it as the money of that other, taking title in himself as security for the money loaned, a trust arises in favor of the borrower. Robinson v. Leflore, 59 Miss. 148; Runnels v. Jackson, 1 How. 358 ; 1 Perry on Trusts, § 133, note 3, and authorities there cited.
It was not necessary that W. G. Thomas should have handed the purchase-price of the mule to W. D. Thomas, and that it should have been then returned to him in order to make it the money of W. T>. Thomas. It was dealt with by the parties as his, and W. G. Thomas, in paying it as a part of the purchase-money of the land, paid it under the agreement, not as his own money but as that of W. I>. Thomas. It was, in fact, a payment by W. D., though made by the hand of W. G. Thomas.
Under such circumstances a trust arose and
The decree is affirmed.