The present bill was filed to establish a resulting trust, in lands in Lawrence county. Our statute of frauds, Code of 1876, § 2199, following the English statute of 29th Charles the Second, exempts from its operation such trusts as result by implication or construction of law, or which may be transferred or extinguished by operation of law. Mr. Justice Stoey — Eq. Jur. § 1201 — defines this species of trust as follows: “’Where aman buys land in the name of another, and pays the consideration-money, the land will generally be held by the grantee in trust for the person who so pays the consideration-money.” He says, “it has its origin in the natural pre- ’ sumption, in the absence of all rebutting circumstances, that he who supplies the money means the purchase to be for his own benefit, rather than for that of another; and that the conveyance in the name of the latter; is a matter of convenience and arrangement between the parties, for other collateral purposes.” And Perry, in his work on Trusts, vol. 1, § 126, employs language almost identical with that used by Mr. Justice Story. Each alike states this to be the rule, m the absence of all rebutting cwcumsta/nces. ■ The rule has many exceptions, and the presumption does not arise, when the attendant circumstances are inconsistent with its existence. It is a mere presumption— a presumed intention — which the law raises, without any proof of the actual intention of the parties, other than the fact that one pays the consideration-money, while the other receives the title. If the title be taken in the name of the wife or child of him who supplies the money, this,-without more, rebuts the presumption the law would otherwise raise. And, if “the trust is dependent on the agreement or declaration of the parties — -when it does not arise from facts proved, attending the creation of the legal estate — it can not rest in parol. The statute is positive. It must be created by writing, signed by the party declaring or creating the same.”—Patton v. Beecher, 62 Ala. 579.
The averments of the present bill are not very clear or explicit on several questions. True, the bill charges that Thomas J. Warren purchased the lands at sheriff’s sale under execution against Levi E. Warren, made in 1867, and that Levi F., the execution debtor, himself furnished and paid the purchase-money. It also charges that Thomas J. Warren conveyed to Gibson without any consideration, and that these several things *41were done at the instance and request, and for the benefit of the said Levi F. It further charges that no change of possession took place, but that said Levi F. continued to reside on the lands, and enjoy their exclusive use and emoluments until his death, some three years afterwards. The bill offers no explanation of'1 the piirpose for which the trust was created, nor of the character of duties, if any, which were imposed on the trustee. From any thing that appears in the direct averments of the bill, it was a naked or dry trust, imposing no duties on the trustee. Yet in section five of the bill is this language: “ Complainants further show that whatever money said Gibson has paid on said lands in the execution of his trust, they are willing should be allowed him on settlement. Further show that tire rents of said lands have been worth about eighteen hundred dollars per annum, since said G-ibson has had possession of the same.” Now, this clause of the bill pretty clearly indicates that the trust did impose duties on the trustee, and that he had paid out moneys in its execution. The clause copied contains another obscurity. The bill nowhere informs us who has had the possession of the lands since the death of Levi F. Warren, nor is it anywhere shown that Gibson has held the possession. Yet, the bill seeks to charge him with rents at $1,800 per annum, “ since he has had possession.” The bill avers that Levi F. Warren died in 1870, and “ left no debts, the same being all paid in full.” The present bill was filed in November, 1880. It is not shown whether the alleged trust, first in Thomas J. Warren, and then in Gibson, was evidenced by writing. But the rule is that, as to contracts the statute of frauds requires to be in writing, it need not be averred in the pleading that they were in writing. That question arises on the evidence.
Under the principles settled in Patton v. Beecher,—62 Ala. 579 — if the trust attempted to be set up in this case imposed, by agreement of the parties, active duties on the trustee, then it did not result by implication or construction of law, and is not valid, unless it was created by instrument in writing signed by .the party creating, or declaring the same, or his agent or attorney lawfully authorized thereto in writing. And we may here repeat the forcible language employed in that case, that “it is difficult to conceive of any good motive a grantor can have in the execution of an absolute conveyance, intending that the grantee shall be the mere repository of a naked legal title, while he reserves the exclusive beneficial interest.” We may add, if such conveyance is made, or procured to be made, with vicious intent — that is, with the intent either to delay, or to hinder, or to defraud creditors, — it is void, whether the trust be declared in writing or not.
*42Another feature of tlie case made by the bill may be commented on. It charges that Levi F. Warren died in 1870. The present bill was filed in November, 1880, probably more than ten years afterwards. Now, it is not averred when Gibson took possession, nor, indeed, that he ever took possession. To be liable for rents, he must have had possession, actual or constructive; and yet rents are claimed in this suit.
We hold that the averments of the bill in this case, so far as they relate to the lands in Alabama, are too indefinite and ambiguous to base relief upon. To decree and establish a resulting trust, the allegations and the proof should be clear.
The averments of the bill as to the lands in Texas are still more faulty. As to lands without the State, our courts can exercise no jurisdiction m rem, or, affecting the res. If title or power affecting these land's was obtained from complainants by duress or fraud, then, upon proper averments and proof, complainants can obtain a personal decree, vacating such title or power. So, if Gibson has converted those lands into money, or lias realized moneys from them, then he can be compelled to account, either at law or in equity, as the nature of the accounts, or the character of the relief may require.—Lide v. Parker, 60 Ala. 165.
The bill in its present form is too indefinite to authorize relief. We can not know whether the defects can be cured by amendment. If the complainants desire to amend, they must apply to the court below. The cause having been submitted only on demurrer, and decreed in vacation, it is still pending in that court. A decree, simply sustaining a demurrer, without further order disposing of the cause, is not a final decree.
Affirmed.