concurring in part and dissenting in part. I concur in so much of the opinion and judgment as directs reversal of the trial court’s judgment, and dissent only from so much as directs entry of final judgment for appellant.
At the risk of some duplication, the following points in the majority opinion should be emphasized:—
First: The petition alleged a trust in land for the benefit of “the family” generally, created by plaintiff Julia and her deceased husband, John, as the owners of family property by “having such property conveyed” to Dominic, the defendant, in 1943.
Second: The evidence showed clearly that the transaction occurred in 1946, and that it concerned real estate which John, or John and Julia, had once OAvned but which then stood in the name of Lewis L. G-uarnieri as a result of sheriff’s deed in foreclosure. The evidence signally failed to develop any terms of an express trust. Not only were there no declarations in praesenti by John, but plaintiff Julia established no claim whatsoever as one of the donors of any trust. As an action for establishing an express trust it failed utterly.
The only type trust which the evidence, charitably viewed, could be considered as tending to show was a purchase money resulting trust, Avith father John paying all the consideration for the transaction and the deed running to Dominic Avho was unaware of the transaction for many months. (Testimony of Dominic on cross-examination.) While motive is not of great importance, it is strongly suggested that the land was put into Dominic’s name in order to give assurance to Julia that John, her husband, would not lose it by foolish financing again or by deeding it away (R. 24, 28, 35). In any event, the taxes were paid with John’s money until such obligation was imposed upon tenants under lease; leases were negotiated Avith tenants by John, and the leases merely mailed to Dominic for execution. When Dominic made so bold as to attempt to hold back rental payments from John during the latter’s lifetime, he was made to disgorge by executing a note (R. 37, 38). When Dominic’s sister, Rose, operated a business on the property, she paid the bank to reduce a mortgage given by Dominic for improvements to make the business operation possible, and *295while there is some indication Dominic was to get ten percent of the business profits, he never got any such percentage (R. 30).
There was thus evidence, if believed by the trial judge, to warrant a finding of beneficial user by John which could dispel any presumption of a gift by him of the property. Lieberman v. Present, 94 Ohio App., 451; 4 Scott, Trusts, 3088, et seq.; Fleming v. Donahoe, 5 Ohio, 255.
Had the trial court confined itself to finding in favor of a purchase money resulting trust, such finding might be sustained, for a trust of this type requires no express declaration, only conduct consistent with source and application of the purchase money. 4 Scott, Trusts, 3012.
But the trial court found that “a constructive or resulting trust” existed. There was no evidence to support a finding that any resulting trust other than the purchase money type existed, and there was absolutely no evidence of fraudulent or misleading conduct of Dominic at the inception of the transaction, or that he acted in any unconscionable manner with regard to the land for some thirteen years after legal title was conveyed to him. The only evidence of unconscionable conduct occurred in 1959 when he deeded a one-half interest in the property to his wife and in 1961 when he and she not only sold the property but refused to account for the proceeds. This is not constructive trust as to the land but, if the land was already impressed with a trust, it is wrongful conduct as trustee which gives rise to liability by way of surcharge, action in accounting, or other personal judgment. See 1 Scott, Trusts, 619; 2 Scott, Trusts, 1540.
The findings of the trial court as to distribution of the trust res are entirely at variance with the only permissible trust finding — that of resulting trust for its deceased creator, John Venetta. Such a beneficial interest would pass either under residuary clause if testate, or as intestate share, presumably one-third to Julia and two-ninths to each child. In attempting to distribute the fund in equal shares the trial court was either trying to recreate the express trust which he had previously rejected or using an inapplicable constructive trust theory to produce and end result which he thought represented substantial justice.
*296The finding and judgment as entered is contrary to law and, I agree, must be reversed. But since there was evidence in the record from which, credibility factors considered, the trial judge could have found the existence of a trust in the land, I do not believe plaintiffs should now be deprived of remedy merely because he selected the wrong type trust and made improper distribution of the res. To what extent my desire to reverse and remand for new trial is influenced by sympathy for trial judges who must make decisions on the fly without aid of time for reflection and the helpful briefs we receive, I cannot honestly say. Yet, with all respect to the need for terminating litigation, where the appeal is one on law only and there is substantial evidence, if believed, in support of a theory of relief unnoted by the trial court, all doubt should be resolved in favor of remanding for new trial. The trial judge should be given the opportunity, if the cause is reparable, to repair the damage.