Hughes v. Letcher , 168 Ala. 314 ( 1910 )

SIMPSON, J.

The bill in this case was filed by the appellant to enforce a resulting trust in certain real estate in the city of Montgomery.

In the case of Butts v. Cooper, 152 Ala. 384, 44 South. 619, citing authorities, we defined the nature of resulting trusts and constructive trusts, to the effect that “resulting trust is a trust which arises by operation of law, where the consideration is paid by one party, and the title is conveyed to another. Says POmeroy: 'In order that this effect may be produced, it is absolutely indispensable that the payment should be actually made by the beneficiary, or that an absolute obligation to pay should be incurred by him, as a part of the original transaction of purchase at or before the time of the conveyance.’ — 3 Pom. Eq. Jur. (3d Ed.) p. 1992, § 1037.” “Resulting trusts arise by implication of law, and cannot grow out of a contract to hold the title for a third person who advances the purchase money. * * * Eliminate the testimony as to the verbal agreement, and it would be difficult to find anything from which to conclude that the consideration moved from Butts.”

In the present case there is no evidence tending to show that the consideration for the purchase money was actually paid by the complainant. On the contrary, the evidence is without conflict that John D. Letcher, to whom the title was made, paid'the purchase money. The utmost that can be made out of the testimony on the part of the complainant is that said Letch-er agreed to lend to the complainant the money which he paid for the property, and hold the title for complainant, until the money was paid, and it is attempted to prove this by tbe testimony of the complainant himself, against the estate of said John D. Letcher. “This is a parol trust pure and simple in violation of the statute.”

Moreover, even if this legal difficulty were not in the way, the judge of the city court properly found that the evidence is not of that conclusive nature required by the law, and the complainant has slept too long on his rights, if he had any.

The decree of the city court is affirmed.

Affirmed.

McClellan, Mayfield, and Evans, JJ., concur.