The opinion' of the court was delivered by
Redeield, Ch. J.There seems to be no question, in the present case, but the plaintiff paid the consideration for this conveyance; and if the deed had been taken in the name of a stranger, there would have been a resulting trust'in his favor. But this being taken to the wife, the implied, or resulting trust which arises in the case of a stranger is, prima facie, rebutted. But this implication, in the case of a deed so taken to a wife or child of the one paying the price of the land, that it was intended as a gift, is clearly liable in its turn to be encountered and overcome by oral evidence ; and if that be done, the trust is still valid, notwithstanding the statute of frauds, which, in this state, in terms, excepts from its operation, all resulting trusts, the construction of the English statute being the same, 2 Story’s Eq. Jurisprudence, § 1201 et seq. to §1205? and the cases cited in the notes; Pinney v. Fellows, 15 Vt. 525.
In the present case the proof satisfies the court, the deed was not intended as an absolute gift. It would then, upon the face of the transaction, stand as an implied or resulting trust, in favor of the husband, which a court of equity will execute in favor of the husband; although, at law, the wife cannot be the trustee of the husband, or vice versa, their existence being, in law, regarded as identical. We think, therefore, the orator is entitled to have the *641•decree affirmed. And as the defendants were made aware of the plaintiff’s claim before the suit was brought, and had opportunity to inquire into the validity of his claim, and the nature of the proof by which it was sustained, and chose to resist it, we do not think they have any just cause of complaint at the order of the chancellor, in regard to costs.* If the case did not show notice to them of the nature and extent of the plaintiff’s claim, and ample time and opportunity to ascertain its character, there might have been good ground for saying the defendants should recover costs.
I have taken no time to attempt to divine the precise purpose of the parties, in having the deed made to the wife. If it were important, one would naturally enough conjecture that the plaintiff was finally prevailed upon to suffer the title to remain in the wife, because he supposed, upon such advice as he relied upon, that the deed would have the same operation, as in law it would have had, if taken in the joint names of the husband and wife, and that the survivor would take the whole land. And if that very case were established in proof, it seems to me probable that the cases would justify a court of equity in compelling the parties interested to allow the deed to have the operation which it was intended to have; and this, notwithstanding the decease of the wife, and that the misapprehension of the parties, was as to the legal operation of the deed: cases of high authority certainly go to that extent. But we regard the proof as justifying the placing the case upon the other'ground.
Decree affirmed.
What this order was, whether to pay the orator’s costs, or merely a disallowance of those of the defendants, does not appear in any of-the papers furnished to the reporter.