Appeal from Third District.

tion. The case, as far as the trust relation is concerned, must be considered in the same light as we would consider a case in which the husband supplied the entire fund for the purchase of the property and permitted the deed to be made to his wife. Before dealing with this specific question, however, we will first refer to the general rule applicable to cases where one person furnishes the money to purchase property and the deed is made to another.

Respondent cites the following from 39 Cyc. pp. 118, 119: "It is a well-settled rule of equity, in the absence of statutory provisions otherwise, that where property is paid for with the money or assets of one person, and the title thereto is taken in the name of another person, in the absence of circumstances showing a different intention or understanding a resulting trust in the property arises in favor of the person whose money or assets are so used, or persons claiming under him, the controlling question being the ownership of the purchase money, and this is true, although there is no actual intention on the part of the party purchasing and taking the conveyance to hold the equitable title for the party whose funds are used in the purchase."

2

The above excerpt is part only of an entire paragraph, the notes to which cite cases from nearly every state in the Union. It is not necessary to cite the cases here. Where not changed or modified by statute, as suggested by the author, the rule is practically universal. But where the relation of husband and wife exists, as in the case at bar, the rule is modified to the extent that, instead of a trust being presumed in favor of the husband who supplied the money to purchase the property, the presumption is that the deed or conveyance was intended to be a gift or an advancement, in which case no trust arises. This exception to the general rule is well stated by the same author above quoted, at page 136 of the volume referred to:

"The rule relative to a resulting trust in favor of the person paying the purchase money for property conveyed to another does not apply where the conveyance is made to the wife of the person paying the money; but, in such a case, it will be presumed, in the absence of circumstances showing a contrary intent, that the conveyance was intended as a gift, settlement, or advancement to the wife, and not as a resulting trust to the husband.

Anderson v. Cercone, 54 Utah 345.

On page 137, however, in the same paragraph, the author

says:

"The presumption, however, in favor of a gift or advancement may be rebutted, and a resulting trust in favor of the husband will arise where the circumstances existing at the time of the conveyance show an intention that the wife shall not take the beneficial interest.

*

These excerpts are well supported by the cases cited, many of which we have examined. Under the exception to the general rule, as stated in the quotation it must be presumed in the present case that the deed to the defendant was intended as a gift unless "the circumstances existing at the time of the conveyance show an intention that the wife should not take the beneficial interest."

The uncontradicted testimony in the case leaves no doubt in our minds that it was not the intention of the plaintiff that the defendant should take the beneficial interest. It was not intended as a gift or an advancement. When the question arose between them as to who should be named as grantee in the deed the plaintiff said, "We better put it in your name; if I can't trust you, I don't know who I can trust." Certainly this was not the language of a donor in the act of making a gift. It was more like the expression of one creating a trust in favor of himself, and such we are constrained to hold it to be. It is not necessary, however, in this case to rely on the language used by the plaintiff for the purpose of establishing the trust. We are not unmindful of the rule that, "to establish a resulting trust in favor of one who fur

3

nished purchase money, public policy and the safety and security of titles to real estate, demand that the proof be scrutinized with great caution, and that it be clear, definite, unequivocal, and conclusive." It was so declared by this court in Chambers v. Emery, 13 Utah, 374, 45 Pac. 192. The rule, however, as applied to that case, related to the unsatisfactory character of the evidence introduced to prove that Chambers had furnished the purchase money for the property in question. Here there is not the shadow of a doubt that plaintiff paid the money. The testimony of plaintiff last above quoted is therefore not necessary to establish

Appeal from Third District.

the main feature of the trust, but merely to show that it was not his intention to give the property to his wife. The law to which we have referred as applied to the facts in the instant case leads us to the inevitable conclusion that the defendant in this case holds the title to the property in controversy in trust for the plaintiff, and, unless he is barred by the statute of frauds or the statute of limitations set up in the answer, the judgment of the trial court should be affirmed.

4

Appellant's plea of the statute of frauds is not supported by authority. The single case cited Skeen v. Marriott, 22 Utah, 73, 61 Pac. 296, relates to an express trust and therefore is not in point. The trust in this case is a resulting trust, to which the statute of frauds does not apply. Chambers v. Emery, supra.

Appellant also relies on the statute of limitations (Comp. Laws Utah, 1917, section 6449), which provides:

"No action for the recovery of real property,, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed of the property in question within seven years before the commencement of the action."

We are not informed by any express declaration of appellant's counsel as to when in his judgment the statute of limitations began to run. From the fact, however, that he pleads the seven-year statute, and this action was commenced in 1917, we assume his contention to be that the statute began to run in 1909, when the property was purchased and the deed made to defendant. On that hypothesis the bar of the statute was complete when the action was commenced in 1917. Did the statute begin to run in 1909? That is the question to be determined. Counsel for appellant, in support of his contention, cites 25 Cyc. 1155, 1156, to the effect that the rule which holds that the statute does not begin to run until there has been a repudiation by the trustee applies only to express trusts; that in the case of an implied or resulting trust the statute is set in motion as soon as the beneficiary becomes entitled to assert his rights. The authority cited, on its face, seems to support this view. However, the question still remains as to whether there is not a vital distinction to be found even be

Anderson v. Cercone, 54 Utah 345.

5

tween different types of resulting trusts. If A. says to B., "Here is a thousand dollars; take it and purchase for me a certain parcel of land (describing it) and take the deed in your own name," it is quite possible that the statute of limitations would begin to run against A. from the time the deed was executed. But if A. and his wife are living together in the mutual confidence of the marriage relation, and A. says to his wife, "I want to purchase a certain piece of property and have the title made to you because of the trust and confidence I have in you" and the purchase is so made and the deed executed, it seems to us a very different rule would apply. The very nature of the case and the relation of the parties implies that the trust is to be a continuing one, at least until such time as it suits the convenience of A. to demand its execution, or until it is repudiated by the wife. In Parks v. Satterthwaite, 132 Ind. at page 415, 32 N. E. at page 83, the court, after stating the rule relied on by appellant here, says:

"It is true that there are cases where the demand must be made within the period fixed by statute. Newson v. Bartholomew County, supra [103 Ind. 526, 3 N. E. 163], and cases cited. But it is also true that there are cases where a different rule applies. Such a case, for instance, is that of a continuing trust, or of a contract to keep for another money of which he makes a deposit [citing cases.] No general rule can be laid down that will fit all cases, since there are cases where justice requires that a demand should be made within the statutory period, while in others the nature of the contract and the situation of the parties require that it be adjudged that the trust or obligation is a continuing one, which is not violated or broken until there is a refusal to honor a demand, and that until the statute does not begin to run [citing cases]." The cases cited support the doctrine announced in the quoted excerpt.

In Faylor v. Faylor, 136 Cal. at page 96, 68 Pac. at page 484, where the statute of limitations was invoked against a resulting trust, the court says:

"The action is not barred by any statute of limitations. The trustee held under the original understanding, and did not repudiate his trust until shortly before the action was brought. The trust was a resulting trust, and was not within the statute of limitations so long as the trust relation existed unrepudiated."

Appeal from Third District.

The opinion cites with approval Butler v. Hyland, 89 Cal. 575, 26 Pac. 1108, which is to the same effect. In that case the fourth syllabus reflects the opinion of the court, and reads as follows:

"Where a trust, voluntarily assumed, was by the understanding of the parties to be a continuing one, and the trustee continued to hold according to the undertsanding, and never repudiated the relation, or did any acts inconsistent with it, the statute of limitations does not run as against the cestui que trust."

We heartily approve the doctrine announced in these cases, and believe it to be especially applicable to the facts in the instant case. But there is another reason appearing on the face of the statute relied on by appellant why the statute should not be a bar to plaintiff's right to recover. Respondent as well as appellant was in possession of this property until she brought her suit for divorce in 1912. Their possession was joint or in common. Under the very terms of the statute relied on as a bar appellant's contention cannot be sustained. In addition to this there is another question presented for our consideration. The record shows that plaintiff commenced an action to recover this same property in 1912, while defendant's divorce proceeding was pending against him; that at that time, at defendant's suggestion, plaintiff and defendant entered into an agreement that if plaintiff would dismiss his action to recover the property defendant would dismiss her action for divorce and they would resume cohabitation as husband and wife. In pursuance of this agreement plaintiff dismissed his action to recover the property, but defendant prosecuted her action for divorce to a final decree, and shortly afterwards married another man. The conduct of defendant in that proceeding was a palpable egregious fraud and she should not be permitted, in a subsequent proceeding in a court of equity, to take advantage of her own wrong. If there were no authority whatever on the subject we would be inclined to hold that under the circumstances of this case the plea of the statute of limitations should not prevail.

6, 7

The following doctrine is enunciated in 25 Cyc. 1016: "The doctrine of equitable estoppel may, in a proper case, be