All of the assignments of error are presented and argued in the brief of plaintiffs under three propositions, which may be stated thus: First, that Clem Thompson took title to the lands in controversy for himself and as trustee for the plaintiff, Leah Shipley, each owning an undivided half interest therein; second, that the premises in controversy constitute the homestead of Clem Thompson and the plaintiff, Leah Shipley, and that the same could not be alienated by the said Clem Thompson without the consent of the plaintiff, Leah Shipley; third, that the defendant, Narcissa Thompson, is wrongfully in possession of said premises without right or title thereto.
The facts relied upon by plaintiffs to established a resulting trust in the premises in controversy are in substance these: Some ten years prior to the death of Clem Thompson he and his wife, Leah Shipley, had a falling out and agreed upon a division of their property; this division was evidenced by written memoranda; their separation was of short duration, and after their reconciliation the control and management of said property was taken over by Clem Thompson and was handled by him in the same manner as it had been prior to their separation; the property which was divided between them was personal property and consisted of cows, horses, and hogs; after their reconciliation this property was sold and traded at various times and other like property acquired by the parties; in January, 1918, Clem Thompson traded this personal property for a car and then traded the car to his sister, Ethel Hooper, for the 30 acres of land in controversy.
It is upon these facts that plaintiffs rely to establish a resulting trust in favor of *Page 43 Leah Shipley to an undivided half interest in the land. Comp. Stat. 1921, sec. 8462, provides:
"No trust in relation to real property is valid unless created or declared: First, by a written instrument, subscribed by the grantor or his agent thereto authorized by writing. Second, by the instrument under which the trustee claims the estate affected; or, Third, by operation of law."
In the case of Hayden et al. v. Dannenberg et al.,42 Okla. 776, 143 P. 859, in defining the degree of proof required to establish a resulting trust this court said:
"A constructive trust may be established by parol evidence, but the law for the safety of titles requires that the proof should be of the most satisfactory and trustworthy kind. The onus of establishing a constructive trust rests upon him who seeks its enforcement and before a court of equity will be warranted in making a decree therefor the evidence must be clear, unequivocal, and decisive."
It is clear that the facts relied upon by plaintiffs to establish a resulting trust in the property here involved fall far short of that degree and character of proof required under the rule above announced.
Under the second proposition the facts disclosed by the record are substantially that at the time of the purchase of this land by Clem Thompson in January, 1918, it was unimproved land; that he rented it for the crop season of 1918 and made no effort of any kind or character to place improvements thereon with a view to occupying it as a homestead for himself and family; that in July following he and his wife moved to Drumright for the purpose, as she testifies, of earning money with which to improve and make a home on this 30 acres of land; in September, 1918, Clem Thompson returned to Delaware county temporarily, and while there received and cashed a check signed by Narcissa Thompson for the sum of $600, said check bearing on its face the notation, "For land"; that upon his return to Drumright he purchased a rooming house for the sum of $890, which he and his wife operated until his death in February, 1919; that they had no money prior to their removal to Drumright; that the 30 acres of land in controversy was the only land that Clem Thompson owned during 1918; that his widow continued to live in Drumwight and to operate said rooming house until about the time she intermarried with her present husband, Shipley, when she sold said rooming house for $2,000; that neither Clem Thompson nor his wife ever lived upon the land in controversy, or made a crop thereon or placed any improvements of any kind or character upon it.
Upon this state of facts the language of this court, in McCray v. Miller, 78 Okla. 16, 184 P. 781, is very applicable, where' it is said at page 21:
"We deem it unnecessary to elaborate, if indeed it is possible, upon the meaning of the word 'homestead,' for we agree with the authorities which hold that it has both a popular and legal signification; that its popular and legal meaning is the same as hereinbefore defined, and that the word 'homestead,' as employed in section 1, art. 12, of our Constitution, is to be taken and applied according to the common and popular understanding of its meaning, which is in accordance with the ordinary rule of construction. Therefore, it is our opinion that where, as in this case, the head of a family in this state is the owner of but one tract of land (not within the limits of any city, town, or village) consisting of not more than 160 acres, the fact of ownership alone is not sufficient to impress the land with the homestead character where said owner does not reside thereon, never has, and has made no preparation nor evidenced any intention of so doing. This conclusion is supported, we think, by the language of the last proviso of the section, to wit: 'That any temporary renting of the homestead shall not change the character of the same where no other homestead has been acquired.' In Hedgpeth v. Hudson 61 Okla. 121, 160 P. 604, it was held, and we think correctly, that this proviso obviously referred to both rural and urban homesteads. The language of this proviso clearly imports that the land claimed as a homestead must have been impressed with the homestead character, and that when so impressed any temporary renting thereof will not change such character when no other homestead has been acquired."
Under their last contention plaintiffs insist that the testimony is insufficient to show title or right of possession in Narcissa Thompson. Upon this branch of the case the testimony shows substantially that the deed from Ethel Hooper and her husband to Clem Thompson covering the land in controversy was lost or destroyed and was never placed of record. In September, 1918, when he returned to Delaware county from Drumright it is shown that the record title to this land was still in Ethel Hooper; that on September 16, 1918, Ethel Hooper executed a deed to this land to Narcissa Thompson; that Clem Thompson was present at the time this deed was executed; that he received a check for $600 filled out in his own handwriting and signed by Narcissa Thompson, which he indorsed, and which was paid October 4, 1918. Several witnesses testified that this deed from Ethel Hooper to Narcissa Thompson was executed at the direction of Clem Thompson, and the conclusion is well nigh irresistable that he adopted this *Page 44 shorter method of conveying the property, thus saving the expense of recording a new deed from Ethel Hooper to him to take the place of his original deed which had been lost or destroyed. Immediately after the execution and delivery of this last deed, Narcissa Thompson took possession of the premises through a tenant and has been continuously in possession thereof since that time. Narcissa Thompson mailed this deed to the county clerk's office of Delaware county for record, but, owing to an incomplete or incorrect address, the letter went to the dead letter office at Washington, D.C. After the death of Clem Thompson in February, 1919, Ethel Hooper and her husband executed a second deed covering this land to Narcissa Thompson, reciting therein that it was given in lieu of the previous deed between the same parties which had been lost or destroyed. After the recording of this second deed, the original deed to Narcissa Thompson was returned to her from the dead letter office at Washington, D.C., and was then placed of record. There is nothing in the record which in any way tends to show that there was fraud in the execution of the first deed from Ethel Hooper and her husband to Narcissa Thompson, or that the circumstances under which their second deed was executed were not as above stated. With the record in this condition there is no evidence seriously tending to impeach the title of Narcissa Thompson.
The Judgment of the trial court herein should, therefore, in all things be affirmed.
By the Court: It is so ordered.