(dissenting).
I find myself unable to agree either to the law announced or to the facts stated by the majority in its opinion. If we should accept the facts as stated, still, in my judgment, under the authorities in this state, there is a misapprehension of the law which wrongfully deprives the appellee of her rightful property. I desire, however, to state more fully the facts, and to state certain facts that have been ignored by the majority opinion, which in my judgment malíes the decision wrongful. . ■ '
*544E. M. Shrader was killed on or about the 30th day of June, 1915,- in Sunflower county, Miss., by the son of appellant. On the 10th day of July thereafter the appellant filed a petition in the chancery court of Sunflower county wherein she alleged that E. M. Shrader departed this life intestate, and that at the time of his death he was seised and possessed of eighty acres of land, more or less, describing the lands now in controversy, and personal property consisting- of three mules, worth about six hundred dollars, and averred that the land was the homestead of the deceased, and that two of the mules were exempt property, and that the petitioner (appellant) was the sole heir of -the deceased, and above twenty-one years of age, and a proper and suitable person to administer upon his estate, and prayed for letters of administration. This petition was sworn to by the appellant. Letters were granted, and appellant qualified as administrator, and thereafter filed an inventory in which she listed items of personal property, consisting of a buggy, plows, farming implements, blacksmith tools, live stock, and household goods, and ten dollars and seventy-five cents cash, and a debt due by J. H. Love for one hundred twenty-six dollars and eighty-five cents, the personal property amounting to five hundred arid nineteen dollars and seventy-five cents, and the debt which was collected as stated in the inventory amounting to one hundred and twenty-six dollars and eighty-five cents, making a total of six hundred and forty-six dollars and sixty cents. This inventory was duly sworn to on the 20th day of November, 1915.
The appellee on the 22d day of September, 1915, filed a petition in the chancery court to remove Mrs. Emma Shrader as administrator, alleging that she, Mrs. Addie Shrader, was married to E. M. Shrader on the 10 ih day of May, 1900, in Shelby county, Ala., and was his legal wife at his death, and that no divorce had been obtained, and that she and Shrader lived *545together from the 10th day of May, 1900, until August, 1.904, when Shrader without cause deserted her, and without any divorce entered into a pretended marriage with Mrs. Emma McDill, commonly known as Mrs. Emma Shrader. She further alleged that the pretended marriage between appellant and K>. M. Shrader was null and void, and alleged that E. M. Shrader left an estate in Sunflower county, Miss., worth eight thousand dollars, and that she, Addie Shrader, was entitled to the administration upon said estate, and alleged that Mrs. Emma Shrader caused letters of administration to he issued to her by the chancery court of Sunflower county, and that she, the said Emma Shrader was in possession, and that said letters of administration were granted the said Emma Shrader within thirty days from the date of the death of E. M. Shrader, and that Emma Shrader had no right of title to said property nor to administer the said estate, and that she was appointed under a misapprehension of the facts, and that petitioner, Addie Shrader, was entitled to the administration, and prayed for the removal of said Emma Shrader and the granting of letters of administration to herself.
Mrs. Emma Shrader in that proceeding filed an answer in which she denied that Addie Shrader was the lawful wife of E. M. Shrader, and denied the allegations of the petition as to the marriage and living together of E. M. Shrader and Áddie Shrader; denied that the marriage between hersélf and Shrader was void, and denied that Mrs. Addie Shrader was the sole heir of E. M. Shrader or the widow of said Shrader; denied that the estate left by E. M. Shrader was worth eight thousand dollars, but alleged in the answer that his estate consisted of personal property worth about six hundred and fifty dollars, and eighty acres of land, the value of which she does not know, but believes to be worth about three thousand, two hundred dollars. This answer was duly sworn to, and states on *546oath that to the best of her knowledge, information and belief that all the facts contained in the above and foregoing answer are true and correct as therein stated.
Evidence was taken on the issues thus made over the contest of administratorship, and the chancellor removed Mrs. Emma Shrader as administrator, the decree reciting that the court — “being now fully advised in the premises, is of the opinion that the proof in said cause established the fact that said B. M. Shra-der and Addie Shrader were legally married at Be-hobath Church, in Shelby county, Ala., on the 10th day of May, 1900, and that they afterwards lived together as man and wife for at least one year, and were never divorced; and that the said Addie Shrader was the legal wife of said E. M. Shrader at the time of his death, and is now his sole heir at law, and is entitled to the relief sought by her said petition.”
And decreed the removal of Emma Shrader as administrator, but declined to appoint Addie Shrader, because she was a nonresident of the state of Mississippi, and appointed the chancery clerk as a suitable person to administer the estate. This decree was appealed from, and in the case of Shrader v. Johnson, 116 Miss. 467, 77 So. 301, this court affirmed the action of the chancellor.
Thereafter the appellee, Addie Shrader, filed a bill in the chancery court alleging that she was lawfully married to E. M. Shrader, and never had been divorced from him, and was his sole heir at law, and as such that she was entitled to inherit his property, and alleged that he died intestate in Sunflower county, Miss., and that he was seized and possessed in fee simple, in addition to other property, of the lands in controversy, describing same. She further alleged that Emma Shrader was in possession of said land, and had rented the said land and collected rents thereon, and that she pretended to be the widow and heir of said Shrader; and if she claimed any other right, title, or *547interest in the estate of E. M. Shrader, deceased, that complainant was not advised of the same, and that in fact and in trnth she owned no right, title or interest in said land, and that complainant was the rightful owner of said land, and that defendant, Emma Shra-der, was holding the complainant out of possession and claiming to be the owner of said land, and casting a cloud upon complainant’s title to said land, and is collecting rents and appropriating them to her own use; and prayed for process and answer not under oath, and for relief for the cancellation of the claim of defendant to the said land as a cloud on her title, and for an accounting for the rents and profits. The bill was sworn to.
The appellant answered, denying that the complainant, Addie Shrader, was the lawful wife of E. M. Shra-der; denied their marriage; denied that Shrader deserted the. complainant; denied that Shrader left without obtaining a divorce, and denied that he entered into a pretended marriage with defendant, but admits that defendant was married to Shrader and was commonly known as Mrs. Emma Shrader; denied in this answer that the deceased, Shrader, was at the time of his death the owner of the land in controversy; and denied that deceased owned any other property of any real character; and denied that the property of deceased was inherited by complainant; and denied that complainant had any title to the land in controversy, but admitted that she, the defendant, had been in possession since the death of Shrader of the lands in controversy; but denied that she was claiming the land as the widow, heir at law, or successor of the deceased; and denied that she has claimed to have inherited the property from Shrader, but admitted she was collecting some rents from said lands; but denied that Shrader ever had any right, title, or interest to the lands; and denied that complainant was entitled to a personal decree against her; and by way of cross-bill alleged that *548she is the widow of J. A. McDill, late of Sunflower county, Miss., and that McDill departed this life about May 1, 1901, leaving defendant a good deal of property, consisting of live stock and cattle; that McDill left several children; then alleged that some ten months after the death of McDill, long years before August, 1904, that Shrader appeared near . Lynn, Sunflower county, Miss., and she became acquainted with Shra-der in the fall of 1901; that she, the defendant, operated certain lands during that year and succeeding years, and that Shrader was employed by her during the years of 1902 and 1903, and was gradually employed by the defendant more and more from year to year; that in the year 1901 Shrader was employed by D. O. Eingold, a prominent planter of Sunflower county; that in 1,902 Shrader operated a gin on the Powell place in the vicinity of Lynn, in said county; in the years 1903 and 1904 Shrader worked with the, defendant making the crop, helping her and her children in the field, and prior to that time had boarded with her, and they were married in January, 1905, and that deceased' never left said vicinity for any appreciable time; and that Shrader always claimed to be single, and that the marriage between the defendant and Shrader was contracted in Bolivar county, Miss., on January 5, 1905, and was valid and legal. She alleged further that the eighty acres of land were purchased entirely with her money and is her property, and that the money came from the sale of certain cattle formerly the property of the said McDill, and from the sale of these cattle two hundred dollars was realized to purchase said eighty acres of land, and said Shrader paid the money for the said land, and either fraudulently or negligently took title in his own name, and the second payment.was made from the sale of timber growing on said land amounting to five hundred dollars, and that by reason thereof she was entitled to have a trust declared in said lands for her benefit, and she was the rightful *549owner; that when she first learned that the deceased had purchased the property in his own name she remonstrated with him, and at that time she thought it would be proper for her to file suit to have the title changed from said decedent to her, but she was advised that the property would descend to her in case of death and could not be sold without her consent.
Complainant answered the cross-bill, denying the allegations, and pleading the' suit first instituted over the administration of the estate between the parties to this suit as res adjudicata of the issues in this suit and as an estoppel against the defendant. The complainant introduced depositions of numerous parties living near Vincent, Ala., showing that Shrader was lawfully married in Alabama to appellee in 1900, and that he lived with her in Alabama until the summer of 1903. A photograph of Shrader was introduced in evidence, .and a daughter and son-in-law of Addie Shrader testified that he is the same person who lived in Sunflower county, Miss., and that the son-in-law saw him a few days before his death in Sunflower county, and that Shrader admitted that he was living with Mrs. Emma Shrader, and requested said witness to say nothing about it, the depositions of the proper officers having custody of divorce records were introduced to prove that no divorce proceedings were instituted by E. M. Shrader against Addie Shrader in said courts where Mrs. Addie Shrader had lived, and no divorce appeared on the records of the chancery court of Sunflower county, Miss.
The deed to the land in controversy was made to E. M. Shrader, and recited a payment of two hundred dollars in cash', and the further consideration of seven hundred dollars to be paid by E. M. Shrader as evidenced by his promissory notes of even date with the deed, each for one hundred and seventy-five dollars, due and payable on the 1st day of November, 1909, 1910, 1911, and 1912, respectively, and reserved a vendor’s lien upon the land *550described therein to secure the payment of said notes. The deed was dated November 12, 1908, and signed by' C. M. Avent. The deed was acknowledged on November 20, 1908, before Willis Brumfield, a notary public.
The notes, with the exception of the date of maturity, which was different in each note as above stated, read as follows:
“$175.00 Belzoni, Miss. Nov. 12, 1908.
“Nov. 1st, after date, I promise to pay to C. M. Avent, or bearer, at Bank of Belzoni, Belzoni Miss. (Branch of Grenada Bank) one hundred and seventy-five dollars with eight per cent, interest per annum from date until paid, value received; if this note is placed in the hands of an attorney for collection, the makers and endorsers hereof agree to pay the holder thereof an attorney’s fee of ten per cent, upon the amount due; demand, protest and notice waived.
[Signed] R. M. Sheadeb.
“For purchase money W. half of N. W. quarter, sec. 25, 21, 4, Sunflower Co.”
The complainant and cross-defendant introduced the record in the administration proceedings in evidence, and the record so introduced contains three different statements under oath, by the defendant and cross-complainant, that the deceased owned the property therein referred to and involved in this suit. The defendant and cross-complainant introduced a great number of witnesses, most of whom were swift to swear in direct examination in favor of the appellant, but on cross-examination testified in answer to detailed questions to facts showing they knew nothing of the matter except the sale of some cattle and statements made by Mrs. Emma Shrader, and admissions by the deceased, R. M. Shrader, that he had agreed to take title in the name of Emma Shrader, and that she furnished the money from the sale of cattle for the purpose of buying the land. Of course the statements made by Mrs. Emma Shrader, much of which was not made in the presence of the *551deceased, are wholly inadmissible, except in so far as they were made in the presence of the deceased, and, reduced to its last analysis, amount to nothing more than a mere unsworn admission on the part of Shrader that he had agreed to take title to the land in the name of Mrs. Emma Shrader, and that she furnished the money to pay on the land of the extent, under the most favorable view to the appellant, of four hundred dollars; five hundred dollars of the purchase money being paid from a sale of timber growing on the land, and only two hundred dollars being paid at the time of the making and delivery of the deed. Both Shrader and Avent were dead, and no one testified as to what passed between Avent and Shrader when the deed was executed and the money paid. The deed and the notes signed by Shrader were introduced in evidence, and show that the land was purchased on credit with' the exception of the two hundred dollars cash payment, and that Shrader’s credit secured by vendor’s lein on the land reserved in the deed was the consideration for the- deed other than the two hundred dollars.' The legal title went to Shrader. Shrader’s personal credit was pledged, and five hundred dollars of the purchase money was paid from the land itself, at a time when the legal title was invested in Shrader. »
In my opinion the chancellor had a right to hold the appellant estopped by the admissions of .her sworn pleadings in the former suit, said sworn admissions being made at a time when the appellant knew the facts as well as she knew them now. The issue as to who was entitled to administration necessarily involved the ownership of the property and the issue as to the validity of the marriage between Shrader and these respective litigants.
The appellant having solemnly sworn in that case, where the facts were admissable in evidence and pertinent to, and controlling of, the litigation there between the same parties, growing out of the same subject-*552matter, that E. M. Shrader owned the property involved in this suit, it should be considered as res adjudicate/, of the rights involved here, because the chancery court could only grant letters of administration on a sworn allegation by the applicant for administration that the deceased died without a will, or without naming an executor in a will,'and’siesed of property to be administered. If the appellant was the 'rightful wife (as the chancellor found she was not), she would have had a right to administer, because the statute gives the wife, or heir, the exclusive right within the first thirty days after death to administer. This right is a valuable right, and certainly, when the parties litigated that issue in that contest, the admissions made under oath' in the pleadings therein are binding, and cannot be disputed, unless they were under circumstances of mistake. Certainly a party should not be permitted to go into the courts of the country and make solemn oath in proceedings requiring an oath, with full knowledge of the facts to which they deposed, and thereafter be permitted to change the position so taken. So it seems, to me that the majority opinion is radically wrong in not taking cognizance of these facts squarely presented for decision and affirming the chancellor.
In the secon»d place, it is well established in the authorities of this state that a trust cannot be established where the sale is on credit.
“A resulting trust in land will not be created in favor of one whose funds have been used in paying the purchase money, where the land was purchased on a credit.” Bowman v. O’Reilly, 31 Miss. 261.
The quotation above made was approved in McCarroll v. Alexander, 48 Miss. 137. In the first syllabi in the case of McCarroll v. Alexander the following rule is stated :
“If one buy land in the name of another, and pay the consideration money, the land will be held by the grantee in trust for the benefit of him who advanced *553the money. So, also, if there has been only a partial advance of the money, the trust will result fro tanto; the foundation of the trust in such cases being that the property really belongs to him whose funds have paid for it. But the facts creating the trust must exist at the time of the conveyance. For it is the money which has gone to the vendor, as an inducement to the conveyance, that creates the equity.”
If the majority opinion had limited its holding to' creating a trust to the extent of two hundred dollars, with interest thereon, I should not have dissented, notwithstanding the inconsistent position taken in the former case, because I could have been convinced that actual justice had been accomplished, though somewhat in defiance of the rules of law.
In the case of McCarroll v. Alexander, in the second syllabi, the following rule is established: “After the legal title has been conveyed, the application of another’s money to pay notes, for purchase money creates nc such trust in favor of the other. The trust must attach, if at all, at the time of the conveyance.”
So under this rule it would be impossible to establish a trust in favor of the appellant in the deferred payments. In the opinion at page 136 of 48 Miss, it is' stated:
“The grantee who paid nothing out of his own funds, and incurred no obligation for the • price, fills but a nominal place in the transaction, and is really the medium only through whom the estate comes beneficially to him whose money or means have paid for it.
“If, therefore, the trust springs up at all, it must attach at the time the title is conveyed to the nominal grantee. For it is the money which has gone to ■'he vendor, as the. inducement for the title with which he parts, that creates the equity in favor of him who advances it. [Citing authorities.]
“After the legal title has been conveyed to the grantee, the application of another’s money to take up *554outstanding obligations for thq purchase money does not confer upon such person a trust in the land, which will so interest him in the estate as that it can be established as to enable him to draw to it the legal title or any part of it, If a trust results and attaches at all, it must be at the time when the conveyance is made. Alexander v. Tams, 13 Ill. 225. When the funds of a third person have been advanced and applied to the payment of the purchase money subsequent to the conveyance, if thereby any charge or lien for reimbursement exists, it cannot be successfully asserted against a bona ,fide purchaser, whether under judgment or otherwise.’'
The announcement in this case was approved in Moore v. Moore, 74 Miss. 65, 19 So. 953.
In Gee v. Gee, 32 Miss. 190, it was held that to constitute a resulting trust money must be paid at the time of the purchase, '•
In Mahorner v. Harrison, 13 Smedes & M. 53, it was held that in order to establish a resulting trust that the advance, of the money by the party setting up the claim for a trust must precede the purchase; that subsequent payment will not raise the trust when it is denied hy the alleged trustee.
In Brooks v. Shelton, 54 Miss. 353, it was said: “The investment of one person’s money in land, the title to which is made to -another, creates a resulting trust only when the money is advanced, or agreed to be advanced, at of before the purchase.”
In Hitt v. Applewhite, 20 So. 161, it was held that a resulting trust in land does not arise in favor of a person lending to the purchaser thereof money with which to pay a portion of the purchase price, nor does such lender acquire any rights in the land By subrogation.
In Gibson v. Foote, 40 Miss. 788, it was held that to establish a resulting trust, where one employs the money of another in the purchase of real estate, and where there is no valid agreement' to purchase the *555property with the trust money, it is necessary to show that the money at the time of the purchase was the fund of the party claiming it, and that it was used in the purchase of the property. In that case the husband used the money of his wife, in the purchase of property, and the court held that the facts in that case were not sufficient to establish a resulting trust in favor of tbo wife or her heirs in the land purchased,, and that the special promise did not create an express trust, because not in writing; that a promise or agreement to create an express trust must he in writing.
In my judgment all of these cases contain as strong or stronger equities in favor of the person seeking to establish the trust than does the record in this case.
Coming now to the degree of proof required to establish a resulting trust, I think, under the authorities of this state, the proof is wholly insufficient to meet the standard required.
In the case of Moore v. Crump, 84 Miss. 612, 37 So. 109, it was held that to establish a trust the evidence must he clear and convincing on the proof of the fraud. The opinion of this case was rendered by the senior counsel for appellant in the present case’ acting as special judge of this court. In the course of the opinion the court approved the following language from a previous decision of this court:
“ ‘We would not he understood as sanctioning the doctrine that an enforceable trust will arise from the mere breach of an oral promise, however solemn, to hold land in trust. There must be conduct influential in producing the result, and but for which such result would not have occurred — amounting, in view of a court of equity, to fraud — to save the case from the statute of frauds. A merely oral promise, and its subsequent breach, however disappointing and harmful, and though ever so reprehensible in morals, is not of itself enough to cause a court of chancery to declare a trust.’ Counsel for the appellees base their contention upon the *556doctrine set out in the Ragsdale Case, 68 Miss. 92, 8 So. 315, 11 L. R. A. 316, 24 Am. St. Rep. 256, and kindred cases. . We fully approve the doctrine. But the proof in the case at bar falls very far short of bringing the case within it. Under the authorities, not only must there be actual fraud on the part of the party sought to be held as trustee, but there must be clear and convincing proof of this fraud.”
In the case of Logan v. Johnson, 72 Miss. 185, 16 So. 231, the rule is laid down that, when the existence of a resulting trust depends upon parol proof, the evidence must be clear, strong, unequivocal, and unmistakable, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt. In this case the opinion was written by Cooper, C. J., one of the ablest judges and clearest thinkers who have adorned this bench. In the course of the opinion he said
“If it were made certain by the testimony that the money derived from the sale of the cotton was the identical fund used in the purchase of the land, it would yet remain uncertain whether the trust, if any existed, was in favor of James Logan or of complainant. The'evidence going to show that the money for which the cotton was sold was the money invested in the land is not satisfactory. Delaware Johhson states positively that it was, but he admits that some six or seven years elapsed after the cotton was sold before the land was bought, during all which time he states that the money was in his trunk. . But he also says that he had, as he expresses it, ‘a right smart’ of his own money, and he does not explain how it was that the money derived from the cotton was so long kept intact. It is not pretended that it was for the purpose of investing it in a home for complainant, or that any purpose to that effect was formed until about the time the land was bought. Where it is necessary to prove by parol the existence of a trust, ‘the evidence must be *557clear, strong, unequivocal, unmistakable, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt.’ 2 Pom. Eq., section 1040.”
In the printed brief for appellant, on page 14, counsel for appellant says: “We are not depending in.this case upon showing a technical resulting trust. The trust here, if we are depending wholly upon that, would fall under the head of constructive trust arising out of fraud. In our view the solution of the case depends upon certain well-settled elementary principles of universal application, so familiar and well established that it was not necessary for us to burden the court with citation of numerous decisions. We are, therefore, quoting largely from Mr. Pomeroy, who we think is recognized by this court as an established modern authority on the principles of equity jurisprudence. This case falls squarely in that broad field of equity jurisprudence relating to actual fraud and estopped. We take it that it is not necessary to discuss the question of actual fraud, as it has been established by decree of the court below that Shrader at the time he pretended to marry appellant was the husband of the appellee.”
In the oral argument counsel for appellant placed his reliance for reversal mainly upon what he termed the principles of natural justice, and the fact that Shrader had fraudulently induced the appellant to marry him under the belief that he was a single man, and that, by reason of his having lived with the appellant for ten years, the appellee ought not to be permitted to take this property, and this seems to be the leading factor in influencing the reversal of this case though the court attempts to put it upon the ground of trust.
It is a familiar maxim that hard cases make bad law. It is not infrequent in trial courts that sympathies, emotions, and a flood of tears sweep aside the barriers of the law; but in this court, the final and supreme judicial authority of the state, I have always considered that the court was immune from these influences, ánd con*558stituted a judicial ‘ ‘ G-ibralter, ’ ’ against which the winds of sentiment and waves of emotion would beat in vain; that this court administered justice according to the law; that it was not responsible for the facts invovling hardships, and did not make law, but accepted the law from the legislature and the common law.
Inasmuch as there is no possessory writ by which the wife can reach out and recall to her possession the erring or straying husband; inasmuch as she can neither maintain a habeas corpus, writ of replevin, ejectment, or unlawful detainer,' to secure his possession; and inasmuch as he has the liberty of roaming whereso’er he will — I fail to see any ground for applying the doctrine of marriage by estoppel or right to a husband by adverse possession. It seems that some of the courts have fallen into this error, and held the lawful wife estopped to claim her legal rights in somewhat similar circumstances, but they surely must have been operating under a missapprehension of the law.
In the evidence as stated above, the only competent ■evidence as to the money of the appellant being used is an unsworn admission by the deceased that ,sueh money was furnished and this is offset by the sworn admission of the appellant that the property in question belonged to the deceased, and these sworn admissions were solemnly made in the courts of the country when the appellant was fully informed as to the facts upon which she now predicates her' right to relief.
The chancellor had a right to find on the conflict of evidence for the appellee, and did so. There is much material conflict in the evidence as to when Shrader came to Mississippi. Some of the witnesses for the appellant claim he was in Mississippi from 1897 to the date of his death, in 1915. The appellant herself says she met him in Mississippi in 1901, and that he lived with and worked for her (prior to their marriage) in 1902, 1903, and 1904. The evidence is completely contradicted by a cloud of witnesses from Alabama who swear that *559Shrader was in Shelby County, Ala., from 1900 to the summer of 1903.
It is a familiar rule of law that triers of fact have a right to disregard the entire testimony of a witness or witnesses who knowingly and corrnptly swear to material facts falsely. In other words, where a witness has deliberately committed perjury on one material fact, the triers of fact are not compelled to accept his evidence as to any part of the testimony of such witnesses. It is manifest that some of the testimony amounted to willful, corrupt swearing on the part of the witnesses, and the chancellor had a better opportunity of determining which witness or witnesses testified to falsehoods, and his determining of the credibility of the witnesses ought to be binding in this court. Some of the witnesses for the appellant are her kinsmen, and therefore interested, others are her friends and neighbors, and it is manifest to my mind that their sympathies for the appellant colored their testimony, and that they made the evidence as strong as it could possibly be made for her.
I deem it unnecessary to comment on the authorities cited in the main opinion from courts outside of Mississippi, for the reason that the decisions of our own court fully cover the law of the case. However, the strongest cases cited in the majority opinion only go to the extent of imposing a trust on the property to the extent of the payment of the original purchase money.