(dissenting). I am unable to agree with the majority opinion in this case. I am thoroughly convinced by the evidence in the record that plaintiff never intended this land should be a gift to his wife, and whether or not the land ever actually belonged to her depends upon the intention of the plaintiff at the time the land was purchased. If, as a matter of fact, it was his intention, at the time the legal title to the land was conveyed to his wife, that she should hold the title for him, then a trust resulted instantly in his favor, and nothing that he is claimed to have said or done thereafter changed the situation in the least. Section 133, Perry on Trusts (6th Ed.) And the circumstances that existed at the time of the purchase may be taken into consideration in determining whether the conveyance was in fact intended as a gift to plaintiff’s wife, or whether she was to 'hold the title in trust for him. Perry on Trusts (6th Ed.) § 146. Plaintiff testified that he bought the land and paid for it, that the title was taken in his wife’s name as a mere matter of convenience to him, and gave as a reason for placing the title in her *220name the fact that he was in debt to a considerable amount that he could not pay just then and he was afraid the parties to, whom he was indebted might make him trouble. To show what Buchada Bucknell’s understanding of the transaction was, a witness (Foster by name, and who was wholly without interest in the controversy) testified that he had1 formerly been register of deeds of Hanson county; that some time during the year 1888, plaintiff and his wife came into the office of register of deeds with an instrument to be recorded; and that, at that time, he had a conversation with Mrs. Bucknell relative to the ownership of the land in question; that Mrs. Bucknell said, at that time, that the land belonged to plaintiff. She said that plaintiff had paid for the land and that it belonged to him; that the title had been taken in her name as a matter of convenience. Witness further testified that, during said conversation, plaintiff spoke up- and said he could explain why the title had been taken that way, if the witness cared to hear it, but witness told him it made no difference to him.
The iindisputed evidence shows that, at the time the land was purchased, in 1886, plaintiff -had proved up on a tree claim and a government -homestead, and that he and his wife were then living upon the government homestead; that the purchase price of the land in question was $1,000, but that it was incumbered by a mortgage for $215; that he mortgaged his government homestead for $800, and, with that money, lie paid the difference between the purchase price and the pre-existing mortgage. Shortly after the purchase, plaintiff and wife moved upon said land, and both lived upon it as their home until her death, in 1891, and plaintiff has continued to occupy it as his home -ever since. During all the time since the purchase, plaintiff has worked the place and cared for it as his own; he broke it and- farmed it; he built corncribs, granaries, and windmills; he rebuilt the house; he paid off the mortgage that was on the place when he bought it, and he paid off the -mortgage that had been placed on the government homestead; he picked the stones off the land and fenced it. H|e made part of said improvements, prior to his wife’s death and part after her death, but the evidence does not show.the part thereof that was made during her lifetime and the part that -was made after her death. While the entries in the county treasurer’s *221office show that the taxes for the years 1886-87 were paid in the name of Lucinda Bucknell, plaintiff testified that he paid such taxes himself, and there is no evidence tending to show that he did not pay them; and it is a conceded fact that he had paid all the taxes from that time until the time of the trial. In fact, plaintiff has been in possession of said land and treated it in every way as his own continuously and uninterruptedly from the time of the purchase until the time of the trial. While plaintiff was under obligation to provide a home and protection for his wife, it was wholly unnecessary that the land in question should have been purchased for that purpose. The evidence shows that, In addition to a tree claim1 of 160 acres, plaintiff had a government homestead of 160 acres on which he and his wife were living, and in which, under the law, she had a homestead right of which she could- not have been deprived, except by abandonment or voluntary alienation. But, conceding that the land was purchased for the purpose of providing a home for Lucinda Bucknell, it was not essential that the title be placed in 'her name for that purpose, for her homestead1 right would attach, -and did attach, to it the instant they took up their residence thereon with the intention of making it their home; and she would be equally secure whether the title was in her name or his. If plaintiff ever made the declarations relative to his w-ife’s ownership of the land, as testified to 'by defendant’s witnesses, it was done for the effect it might have upon his creditors;’ but there is no evidence to show that he ever intended to defraud his creditors, and the undisputed evidence shows that the debts he owed at that time were paid in full. The declarations made 'by the plaintiff relative to the ownership of the land are not sufficient to overcome the inference to be drawn from his conduct in the use and improvement of the place for so long a period of time, and the declarations made by Lucinda Bucknell during her lifetime.
The judgment and order appealed from ought to be reversed.