(dissenting). The plaintiff in this ease does not rely upon an express trust, for no valid express trust was created. Comp. Laws 1913, § 5364. This section is- a misprint. See § 4821, Rev. Codes 1905, for the correct provision. He relies upon a trust which the law implies from the circumstance of the payment of the consideration. Comp. Laws 1913, § 5365.- This is a resulting trust implied in law. In such cases the rule is established that the plaintiff’s evidence must amount to more than a mere preponderance, for he is seeking to overcome the apparent legal effect of his own act in directing or permitting the title to be vested in another. Carter v. Carter, 14 N. D. 66, 103 N. W. 425. In that case it was stated in the syllabus:
“The proof must be clear, specific, satisfactory, and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt.”
A majority of the members of this court has expressed the opinion that this burden of proof has been sustained by the plaintiff, and has stated the substance of the testimony which is regarded as amounting to the necessary proof. In this the majority members agree with the trial court. A reading of the evidence, however, leaves in my mind a grave doubt as to the correctness of this conclusion. This doubt arises from the facts established by the record with regard to the payment of the consideration, as well as from the testimony of the plaintiff himself with regard to the nature of the transaction when the land was conveyed to his wife.
The consideration ivas not paid at the time the property was purchased, but -was paid later, largely from the earnings of the farming' operations upon the- land in question. The grantee in the deed was shown to have been an important factor in the operation of the farm. So it was really paid out of the joint earnings of the husband and his wife.
Where a husband causes property to be transferred to his wife or to be taken in his wife’s name, a presumption of gift or settlement arises which must be overcome before a court is justified in directing a re-conveyance. See Pom. Eq. Jur. § 1039; Perry, Trusts, §§ 143, 147. It does not seem to me that this presumption is overcome in this case. *409The testimony of the plaintiff himself goes a long way toward disproving the existence of a resulting trust for his benefit. He testified:
“Well, says I, if I can get the $200 I believe I will try it, and Mr. Wagner commences to make the deed out in my name, and that farm I was going to buy they were mortgaged up lots of times and I didn’t want to do any business without getting anybody to look the thing up for me, so I went down to get John Burke. Mr. Burke came to Mr. Wagner’s office and he looked things over, and Mr. Wagner asked me if I have any bond. That is all I could remember now. I told him I could get some. Mr. Burke says, ‘Mr. Boberge, why don’t you püt that in your wife’s name/ and Mr. Godfrey says that too.”
“Q. Both men?”
“A. Both men. He says if there is any bond to be paid you pay that yourself. Then for the reason it will get it in trust for you in your old age, you and your wife, and I told Mr. Burke and Mr. Godfrey that I didn’t see no difference between my name and my wife’s nanne. Mr. Burke told me, he says if you want to keep it in trust for your old age that is the way you have got to do it. So they made them papers and I went down home with them papers and I told my wife, ‘Here is the property, for our old age/ and she says, ‘I don’t want to have those in my name.’ She says, ‘I am not supposed to know anything about farming or anything of that kind.’ Says I, ‘I was advised by the two wisest men in the county to do that for our protection for our old age.’ My wife replied, she says, ‘In this case I sign my own name,’ but, she says, ‘the farm will belong to you, and not to me.’ She says, ‘I will sign my name for trust and for protection for our old age.’ She says, first, ‘If I die—I don’t knoAv AA'hether it will be next year or ten years or twenty years or fifty years. . . . And you don’t haAre no trouble with nobody and I suppose if you die yourself it will be something for me; it is a trust, those papers for our old age.’ So she signed them, and I sent them to Mr. Burke.”
From this testimony it would seem to be clear that if the plaintiff had died before his wife, the grantee in the deed, the heirs could not have established a trust, for the legal title and the complete beneficial interest would have merged in her. In fact, she had a beneficial interest from the beginning, and the most the plaintiff ever had after the -original conveyance, according to the legal effect of the transaction as *410disclosed by his own testimony, was a charge upon the estate for his own support in old age. See Perry, Trusts, § 152; Pom. Eq. Jur. § 1033. In the light of the plaintiff’s own testimony, he surely could not have secured a reconveyance during the life of the grantee, and, as I view the case, he is in no better position to do so after her death.
Viewing the case in this light, I am unable to concur in the majority opinion.
Christianson, Ch. J., I concur in the foregoing opinion of Mr. Justice Birdzell.