The single question for solution, is, whether on the facts in this case, the wife was a trustee for the husband, and whether the heirs of the husband, can treat the lands in controversy, as held by his widow, as mere trustee for their use.
In Warren v. Brown, 25 Miss., 74, it is laid down in general terms, that the wife cannot be a trustee for her husband, and that purchases made by Mm in her name will be treated as advances. Asa general proposition, this is correct, but it is contended, that inasmuch as a trust results in favor of the person who furnishes the money to pay for land, that trust may he overcome by parol evidence.
Suppenom v. Osborne, 41 Miss., 125, holds that the wife is not bound by any covenant, nor ean she be bound by any covenant of her trustee in a deed of separation, nor can she in consideration of separation convey or release to her husband her claims in Ms estate.
*568The inodes of parting with, or creating estates in, or encumbering her lands, are pointed out by the several provisions of the statutes.
There is no principle of equity more firmly established, than this: “That if a man buys land in the name of another, and pays the consideration money, the land will be held by the grantee in trust, for the benefit of him who advances the money.” It was said by Ch. Bameyre, in Dyer v. Dyer, 2 Cox, 92, to be the result of the cases, without exception, that the’trust attaches to the legal title, whether freehold, copyhold, or leasehold, whether the title be taken in the name of the purchaser and others jointly, or whether in one or several manners, in favor of. the person who advances the money.
The trust results from the act, and is a presumption — a presumption of intention. It is necessaiy, therefore, to survey carefully each special case to see whether upon the face of the transaction, there is anything to prevent the implication from arising.
If the title be taken in the name of a stranger, towards . whom, he, who supplies the money, stands in no close relationship of blood, the trust springs up as an. implication of law.
If, however, there exists a moral duty to advance and provide for the recipient of the legal title, 'as in the case of a son or daughter, or wife, there the advancement of the money by the father, or husband, will be’ referred to this moral obligation, and will be placed to the account of a natural duty which he is performing; and the presumption instead of being in favor of a “ trust,” will be that it was a gift by way of advancement and provision. 2 Story Eq. Jur., § 1204; Whitten v. Whitten, 25 Miss., 194.
In the case of the child or wife, the rule is not inflexible, that it shall be a provision or advancement, but only shifts the burden of proof, so that if it shall be clearly proved that it was not meant as an advancement, but that the title was' placed in the child or wife, for other reasons, to be held in *569trust for the father or husband, then this presumption is overcome.
It is pretty clearly intimated in Whitten v. Whitten (supra), that where the conveyance is made to the wife, the presumption of an advancement may be overcome. In Wilton v. Derine, 20 Barb., 10, it is said such presumption will stand, unless the contrary is established by proof. In Jackson v. Matsdorf, 11 Johns., 95, parol testimony consisting of the declarations of the father were received to rebut the presumption of an advancement. Thompson, J., puts it on the ground that a resulting trust not being within the statute of frauds, could be established by parol. Therefore, the contrary, that it did not exist, was open to the same sort of proof. It was held in Lord Altham v. Earl of Anglesia, 2 Salk., 676; Finch v. Finch, 15 Ves., 43; Bartlett v. Pickersgill, 1 Eden., 515, as well settled that parol evidence was admissible to rebut a resulting trust.
There was a class of early cases, such as Walter v. Chriton’s case, Pr. Ch., 88; Gaswigne v. Thwying, 1 Ves., 336; Hooper v. Eyles, 2 Vernon, 480; holding that if the deed expressed that the consideration money was paid by the grantee, parol testimony cannot be admitted after the death of the nominal purchaser, to prove a resulting trust, for that it was said, would contravene the statute of frauds and perjuries. But it is now settled otherwise. Linch v. Linch, 10 Ves., jr., 511; Sugd., 598, title: “Land Uses,” 325. But if the nominal purchaser, in his life-time, gives a declaration of, or confesses the trust, that would, in the estimation of the elder judges, take it out of the statute. Ambrose v. Ambrose, 1 Pierre Wm., 322; Ryal v. Ryal, 1 Atk., 59. In the former case, the holder of the legal title, after the death of the person who supplied the purchase money, made .a written declaration as to whom and for what purpose the money was furnished, the lord chancellor said: “ This was evidence of the trust.” So would the examination of the nominal purchaser, after the death of the person claiming the trust, been competent to set it up. This would have been good against the *570widow, who sought to fix a debt upon the nominal purchaser, and' thereby secure to herself a distributive share of it as personalty.
This doctrine of resulting trusts goes in strict analogy to the doctrine of the common law, that where a feoffment is made without consideration, the use results to the feoffor.”
Parol evidence is admissible to prove that the money was not paid by the nominal purchaser, although so recited in the deed. Linch v. Linch, 10 Vesey, 511, 517.
The principle of advancement has been pushed to the extent of including persons towards whom the person advancing the money, has placed himself in loco parentis, as in Beckford v. Beckford, 2 Lofft, 290; an illegitimate child, Elrand v. Dancer, Ch. Ca., 26; a grand-child, whose father was dead, and Currant v. Iago, 1 Coll. C. Ca., 261.
Facts antecedent or contemporaneous with the purchase or so immediately after it, as to constitute a part of the same transaction, may properly be put in evidence for the purpose of rebutting the trust. Lewen on Trustees, 136; Snell’s Principles of Equity, 98.
It has been said that a wife cannot be a trustee for her husband (Kingdom v. Bridges, 2 Vernon, 68), but the observation must be construed to mean not that; if the legal title be vested in a wife, upon trust for her husband, the court would not execute the intention; but if the husband take a purchase in the name of his wife, which was the case in 2 Vernon (suprco), the court will consider the purchase, not as a trust for the husband, but as an advancement for ^the wife. Lewen on Trusts and Trustees, 85. The deed from Reed to Nancy Wilson, the wife of A. Wilson, was dated June 11th, 1844, acknowledged the 12th of the same month, and filed for record August 1, 1844. The written acknowledgment of the trust, in favor of A. Wilson, by his wife, is dated June 20,1844. It is not improbable that this paper was executed about the time of the delivery of the deed, “or .so immediately after it as to constitute a part of the same transaction.” It is almost, if not quite, a contemporaneous recognition of the trust.
*571The summary of the equity of the hill is, that this purchase, by A. Wilson, from' Reed, was not intended as an advancement for the wife. In the absence of any other circumstance than the payment of the consideration money by the husban’d,'the law would pronounce that there did not arise a trust; that it was meant as an advancement, is but a presumption of law, not an absolute, fixed rule; and it is within the sanction of authority, that this presumption may be overcome by testimony. If the complainants can establish this proposition by clear, convincing testimony, they would be entitled to relief.
There was no error, therefore, in overruling the demurrer to the bill. Decree affirmed, and cause remanded for furthur proceedings.