dissenting.
I dissent.
Our review of a summary judgment is two-pronged. First, was there a genuine issue of material fact? Second, was the law correctly applied to those facts which were found to be without dispute?
First I examine the trial proceedings to determine whether there was a genuine issue of fact. Plaintiff Bitzegaio advanced a theory of resulting trust in his amended complaint. Paragraph no. 2 of the complaint discloses that L. L. Criss and J. Morton Swango each paid half the purchase price of the land. This paragraph also discloses an “understanding” that eventually Bitzegaio would receive a one-third interest in the land.
Bitzegaio’s affidavit expanded upon this arrangement. In it he itemized the expenditures he had made pursuant to the alleged understanding. A counter-affidavit was filed by defendant Charles H. Criss. Nothing in it contravened the Bitzegaio affidavit. The Criss affidavit merely recounts some historical information about the use which was made of the land. Much of this affidavit is hearsay. Nothing in the Criss affidavit raises a genuine issue of material fact in opposition to Bitzegaio’s theory of resulting trust.
Such was the posture of the case when the motion for summary judgment was entertained by the trial court. Insofar as the existence of the resulting trust depended upon the presence of certain facts, the trial court was faced with a situation in which the defendants had failed to point out any genuine issue of material fact. Of course, the failure of the defendants to respond effectively to a motion for summary judgment does not automatically entitle Bitze-gaio to a summary judgment. Smith v. P. *1283& B. Corp., (1979) Ind.App., 386 N.E.2d 1232, 1234; Layman v. Atwood, (1977) Ind.App., 370 N.E.2d 933, 935; Levy Co. v. State Bd. of Tax Comm’rs, (1977) Ind.App., 365 N.E.2d 796, 798. Nonetheless the party against whom judgment is sought runs the risk of suffering an adverse ruling if he fails to defend affirmatively against the motion. “Although Bassett was under no obligation to present evidence sufficient to establish her claim, she was obliged to put forth sufficient basis upon which the court might find existence of a genuine triable issue.” Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18, 23. “The moving party has the burden of proving the non-existence of a factual issue, but when the materials filed by the moving party establish the lack of a genuine issue of material fact, it is incumbent on the opposing party to comply with Trial Rule 56(E) and to show a genuine issue.” Middelkamp v. Hanewich, (1977) Ind.App., 364 N.E.2d 1024, 1031; see also Lazarrus v. Employers Mat. Cas. Co., (1977) Ind.App., 364 N.E.2d 140, 142; Western State Bank of South Bend v. First Union Bank & Trust Co. of Winamac, (1977) Ind.App., 360 N.E.2d 254, 259; Walters v. Kellam & Foley, (1977) Ind.App., 360 N.E.2d 199, 204-05; Letson v. Lowmaster, (1976) Ind.App., 341 N.E.2d 785, 788; Cunningham v. Universal Battery Division, (1976) Ind.App., 352 N.E.2d 83, 86. The failure of the defendants to have controverted the Bitze-gaio affidavit means that the facts therein are deemed admitted. Carvey v. Indiana Nat. Bank, (1978) Ind.App., 374 N.E.2d 1173, 1174 n. 1. Also, the failure of the defendants to have demonstrated a genuine issue at the trial level now bars them from attacking the judgment on appeal on the ground that there is a genuine issue of material fact. Batchelder v. Haxby, (1975) 167 Ind.App. 82, 337 N.E.2d 887, 890.
Consequently, by reason of all this the defendants are now barred from challenging the judgment on the ground that there is a genuine issue of material fact. Therefore I turn to the second dimension of our review, namely, did the facts as alleged by Bitzegaio entitle him to the relief granted by the trial court?
A resulting trust of the type here in question is a purchase money resulting trust. G. Bogert, Law of Trusts § 74 (1973). As Bogert points out, at p. 280, Indiana has placed limitations on this type of trust. These limitations are found in IC 30-1-9-6-8. A resulting trust may still arise if “it shall be made to appear that, by agreement, and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof.” The obligation of Bitzegaio to pay a portion of the purchase money can be fulfilled by making payment before or after the conveyance. The key issue is whether Bitze-gaio’s obligation existed at the time of the conveyance. Rickes v. Rickes, (1923) 81 Ind.App. 533, 141 N.E. 486. The obligation did in fact exist. This obligation was Bitze-gaio’s alleged “understanding.”
The majority hold that the alleged “understanding” did not satisfy the supposed requirement of Rickes v. Rickes that the agreement be an “absolute obligation to pay.” Whether an agreement is an “understanding” or an “absolute obligation to pay” presents a question of fact; i. e. what was the intent of the parties? Because intent in the context of this case is a question of fact, a summary judgment generally may be avoided by raising this as an issue of fact. Petro v. McCullough, (1979) Ind.App., 385 N.E.2d 1195, 1196 (state of mind is a question of fact); Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18, 21 (same); First Federal S. & L. Ass’n v. Baugh, (1974) 160 Ind.App. 102, 310 N.E.2d 101, 104-05; 73 Am.Jur.2d Summary Judgment § 5 (1974). However, as pointed out earlier it is too late in the day for either the defendants or this Court to be raising issues of fact. Because the defendants failed to challenge the agreement on any factual grounds, we must accept as true Bitzegaio’s averment that the agreement represented his obligation to pay. This being so, he has succeeded in establishing his right to summary judgment.
*1284I also disagree with the particular disposition ordered by the majority. The majority have ordered that judgment be entered for defendants. This is wrong. Not only have they erred by raising a factual issue to overthrow the judgment, they have compounded the error by resolving this fact issue against Bitzegaio and in favor of defendants. A more palatable position would be to remand for further proceedings so that at least Bitzegaio has an opportunity to resolve this issue in his favor.