This suit is prosecuted by the plaintiff against the defendants, to establish an implied trust in her favor in certain lands situated in Yamhill County. The defendant Nancy S. Young is the plaintiff’s daughter, and C. W. Young is hor husband ; May Wilson is also a daughter of the plaintiff, and J. C. Wilson is her husband; and Grace Springer is a minor, a daughter of the plaintiff, and is represented by her guardian ad litem.
It appears from the facts in this case that George W. Springer, in bis lifetime, was tbe husband of the plaintiff, and that they resided together as husband and wife, in Polk County, Oregon, on and prior to June 28d, 1851; and that on that day *281said Geoi’ge W. Springer made settlement on 840 acres'of unoccupied public lands in Polk County, and now included within the limits of the Grand Ronde Indian Reservation; and that said George W. Springer and the plaintiff, his wife, thereafter continuously resided on and cultivated said land for more than four years next after said settlement; that on the 4th day of October, 1858, the said George W. Springer gave notice to the surveyor general of Oregon of his said settlement upon and cultivation of said lands, in all respects pursuant to the act of September 27th, 1850, commonly called the donation law, and thereby became entitled to 640 acres of land under said act, one half to himself and the other half to his wife ; that on the 4th day of March, 1856, General Joel Palmer was superintendent of Indian affairs for Oregon; and that, on that day, acting for and in behalf of the United States, he purchased of the said Geoi’ge W. Springer and the plaintiff their said donation land claim, and paid them therefor the sum of $3,750, and that they executed to him a deed for said claim. It also appears that on the 17th day of March, 1856, the said George W. Springer and the plaintiff purchased one of the tracts of land in controversy in this suit of C. Comegys, and paid therefor $2.250 ; being a part of the same money they had received for their said donation claim ; and that on the 25th day of April, 1856, they purchased the other parcel in controversy of John Sherwooil, and paid therefor the sum of $1,500, being the residue of the sum received from Gen. Palmer by Springer and the plaintiff for tlieir said donation claim.
It further appears that at the time of said purchases, respectively, by said Springer and wife last referred to, said Springer managed said business for himself and wife, and took the deeds for said land in his own name, and not in the name of himself and the plaintiff; but thereafter, and up to the time of his death, he recognized the rights of the plaintiff in said land; and it was the understanding between the plaintiff and her said husband that he would convey to the plaintiff an undivided half of said premises at some convenient time thereafter. During the lifetime of George W. Springer, and after his death, *282the matter wag-often talked over in the family, and was understood by 'all the children, six in number; and they have all since conveyed to the plaintiff what would have been their mother’s part, if the arrangement between their father and mother had been completed, except the defendants Nancy S. Young and May Wilson.
About the year 1880, George W. Springer was taken suddenly ill, and died in a few days thereafter; since which time the plaintiff has had the possession of all of said premises, except after the appointment of an administrator, using the proceeds for the support of herself and family, and in making some improvements on the farm. During his lifetime, George W. Springer always recognized the rights of the plaintiff in said land, and they appear never to have been controverted or drawn in question until since his death.
A proper solution of the questions discussed by counsel requires that we should first consider the rights of Mrs. Springer in the land in controversy, without regard to and independently of the mai'ital relation which existed between her and her deceased husband. When a conclusion shall have been reached on that point, we can the more readily determine in what manner and to what extent her rights were affected, if at all, by the marriage relation.
We think it is clear that, under the facts in this case, a trust must be implied in favor of the plaintiff. It rests upon principles of equity that have often been recognized in this state, and that are elementary. “Whenever the circumstances are such that a person who takes the legal estate in property cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment.” (Willard Eq. 599.) The same author on the same page classes constructive trusts as follows: “First, when the acquisition of the legal estate is tainted with fraud, either actual or constructive; and, second, when the trust depends on *283some general equitable rule, independently o£ the existence of fraud.”
Mr. Story says: “If a joint purchase is made in the name of one of the purchasers, and the other pays or secures his share of the purchase money, he will be entitled to his share as a resulting trust.” (2 Eq. Jur., Sec. 1206.) And so it is laid down by the same author as the established doctrine, without a single exception, and as the result of all the cases, “ that the trust of the legal estate, whether freehold, copyhold, or leasehold, whether taken in the names of the purchaser and others jointly, or in the name of others without the purchaser’s, whether in one name or several, whether jointly or successively (successive), results to the man that had advanced the purchase money.” (2 Story Eq. Jur., Sec. 1201.)
Another author, very eminent in this department of the law, speaking of constructive and resulting trusts, says: “ They are of two species, ‘ resulting,’ and ‘ constructive,’ which latter are sometimes called trusts ex maleficio ; and both of these species arc properly described by the generic term implied trusts, liesuiting trusts arise when the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty ; but the intent in the theory of equity appears, or is inferred or assumed, from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. Constructive trusts are raised by equity for the purpose of working out right and justice, where there was no intention of the party to create such a relation, and often oontrary to the intention of the one holding the legal title. * * If one party obtains the legal title to property, not only by fraud, or by violation of the confidence, or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.” (1 Pomeroy Eq. Jur., Sec. 155.)
*284It must be apparent, that George W. Springer could not have retained the title to this land against the claim of this plaintiff, so far as yet appears ; and if he could not, neither can the defendants, who have or claim no other interest therein than such as descended to them as heirs at law of their father, George W. Springer. They stand in the shoes of their ancestor. They take the title which the law casts upon them, affected with the same trusts and equities as it was when their ancestor held it.
Does the fact that the plaintiff was the wife of George W. Springer during these transactions affect, impair, or destroy the rights which she would have otherwise had in the land in question? It was argued by counsel for the appellants, that George W. Sp>ringer received the plaintiff’s portion of the purchase pmce of the donation claim when it was sold, and thereby reduced the same to possession ; and this made the same his own, and out off all rights of the plaintiff. This assumption relates to a question of fact, and does not appear to be justified by the evidence. The plaintiff testified that she had possession of her half of this money the same as he had his, and I cannot find any controverting evidence in this record. Besides, if the plaintiff only gave this money to her liusband to pay over for her for the land in question, then his possession of it was not such as would extinguish her rights. However this may be, there is another and a more serious difficulty in the way of the appellants. On the 20th day of January, 1852, the legislature of Oregon passed an act providing that “ all right and interest of the wife in land donated by said act of 27th of September, 1850, should be secured to the sole and separate use and control of the wife; and that she should have to her own use the rents and profits thereof ; and that such land should in no manner be made liable to the debts of her husband.” It is true that this act was repoealed in 1853, but the effect of the act and of the repeal have both received a construction by this court which is adverse to appellant's claim, and is decisive of this pioint. (Linville v. Smith, 6 Or. 202.)
*285The appellants next insist that the plaintiff’s claim or interest in said land is barred by the statute of limitations. Sec. 378 of the Civil Code, as amended (Session Acts, 1878, p. 25), provides: “ A suit shall only be commenced within the time limited to commence an action, as provided in title 2 of chapter 1 of this code ; and a suit for the determination of any right or claim to, or interest in real property, shall be deemed within, the limitations provided for actions for the recovery of the possession of real property.” This suit falls within this provision of the code, and the same statute that would bar an action for the recovery of the possession of real property will bar this suit. That period is ten years, and is fixed by section 4 of the civil code as amended. (Session Acts, 1878 pp. 21, 22.) But possession, to constitute a bar either at law or in equity, must be adverse. The statute nowhere defines what shall be an adverse possession sufficient to bar an entry. An adverse possession cannot begin until there has been a disseizin, and to constitute a disseizin there must be an actual expulsion of the true owner for the full period prescribed by the statute. An adverse possession is aptly defined by Ingersoll, J., in Bryan v. Atwater, 5 Day, to be “ a possession not under the legal proprietor, but entered into without his consent, either directly or indirectly given. It is a possession by which he is disseised and ousted of the lands so possessed.” To make a possession adverse it must be “ an actual, continued, visible, notorious, distinct and hostile possession.” If its inception was permissive, or with the consent of the true owner, then such possession could never become adverse until some clear, decisive act of the occupant is shown, which would constitute a disseizin of the true owner. (Hall v. Stevens, 9 Met. 418; Dikeman v. Parrish, 6 Barr. 210 ; McMasters v. Bell, 2 Pen. & W. 180.)
So, also, if at the time one enters, or afterwards, he does not claim the title himself, but acknowledges the title of another, his possession must be taken as an entry or holding in subordination to the title of the person whose right he acknowledges. (Rung v. Shoneberger, 2 Watts, 23.)
*286But we do not think the statute of limitations applies in this case for another reason ; neither husband nor wife can hold adversely to each other, premises of which they are in the joint occupancy as a family. (Hendricks v. Rasson, 53 Mich. 575.) In such case the possession of neither can be regarded as adverse to the other, while they jointly reside upon and occupy such premises. There is no more reason to claim that Mr. Springer’s possession was adverse to the plaintiff, than there would be to maintain that her possession was adverse. The possession of neither°was adverse to the other. In such case the law will not subject either husband or wife to a loss of property because such person has not resorted to legal proceedings ; but will rather hold that the possession of each was in subordination to such rights in the property as were possessed by the other party.
Nor is this a stale claim. The same reason that would prevent the statute of limitations from running in this case, will save the claim from being stale. The plaintiff was not bound to sue her husband. He never denied her right, but always acknowledged it; and no sufficient reason has been suggested why the plaintiff should be denied the assistance of a court of equity, on the ground that her claim is alleged to be stale. The plaintiff’s claim is entirely meritorious. It rests on its own merits. It is unaffected by a single act of bad faith. It had its origin in the act of Congress making donations of public lands to the early settlers of Oregon. She endured the hardships of pioneer life to assist her husband in its acquisition. She had done no act to forfeit the right thus acquired, and we have no doubt she is entitled to the relief prayed for. Let the decree be affirmed.