(concurring in result).
After long study, I concur in the result reached by the opinion of Chief Judge Stephens, solely because plaintiffs cannot recover in any event. It is extremely difficult to find that either count of the complaint could have stated an actionable claim. It is impossible to find basis for a cause of action on the theory of resulting trust. The facts which were of necessity alleged negative any possible recovery. The motions to dismiss should have been sustained.
But the trial court, instead of granting a motion to dismiss, allowed a motion for summary judgment based upon supposed laches and estoppel set up in the answers. But such defenses require the trial of the state of mind of both plaintiffs and defendants. Genuine issues of material fact were thus tried upon affidavits over objection. This is a perversion of the summary judgment procedure.
This case offered a splendid opportunity for disposal on the merits by use of discovery and pretrial conferences. Instead, the weary round of motions and amended pleadings was followed for more than four years. The culmination was a summary judgment upon an untenable ground. The suspicion might arise that the final disposal was on technical grounds and not on the merits. The legal profession and the courts suffer from such suspicions even if these are unfounded.
Because the record shows clearly that plaintiffs could never prevail on the merits, the result reached saves further unnecessary litigation.