(concurring).
Despite the harshness of the result,1 I concur in Judge Bench’s opinion.
In so doing, I wish to note that, although the “constructive trust” doctrine has been argued by the parties, the “resulting trust” concept actually seems more applicable. “The resulting trust is a kind of implied-in-fact trust, that is to say, it is imposed because as a matter of circumstantial evidence some such arrangement seems to have been intended by the parties, though they did not express their intent in words.” D. Dobbs, Remedies § 4.3 at 241 (1973). According to one case, a resulting trust is often said to be limited to three situations: “(a) The failure of an express trust; (b) the full performance of an express trust without exhausting the trust estate; and (c) the payment of the purchase price of property by one who directs that title be taken in the name of another.” Belton v. Buesing, 240 Or. 399, 402 P.2d 98, 101 n. 4 (1965). The third kind of resulting trust, the so-called “purchase money resulting trust,” was recently found by our Supreme Court to be the proper basis for a trial court’s disposition, although the trial court couched its judgment in terms of a constructive trust. See Matter of Estate of Hock, 655 P.2d 1111, 1114 (Utah 1982). Even though the parties did not raise the “resulting trust” angle below and have not argued it here, if the court’s judgment as to the Barker Road property could, as in Hock, be affirmed on “resulting trust” grounds, it would be appropriate for us to affirm. See, e.g., Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 894-95 (Utah 1988).
Although, as noted, there has been a tendency to view just three specific situations as giving rise to a resulting trust, I tend to agree with the Belton court that the doctrine should not be so confined. *1182“Rather, we would find a resulting trust wherever the circumstances surrounding the disposition of property raise an inference, not rebutted, that the transferor does not intend that the person taking or holding the property, or a third person, should have the beneficial interest therein.” Belton v. Buesing, 402 P.2d at 101 n. 4. I also agree with Belton that a “resulting trust may arise where a conveyance is made without any consideration, [if] it appears from the circumstances that the grantee was not intended to take beneficially.” Id.
If the trial court accepted plaintiffs claim that she conveyed the Barker Road property to Andrew to avoid liens asserted by her former husband’s creditors, and if it appeared no beneficial interest in Andrew was intended, it might be proper to find a resulting trust.2
However, that result is not possible here. The court found the conveyance was pursuant to a plan by plaintiff and Andrew to acquire joint ownership of their previously separate property. While execution of the plan was perhaps flawed, the plan specifically contemplated each party’s acquisition of a beneficial interest in the other’s property. Moreover, Andrew’s intended beneficial interest in the Barker Road property is shown by the fact that he shared in the rental income derived from the property.
Relying all but exclusively on her claim of de facto marriage, plaintiff did not advance theories of partnership or mutual mistake. Evidence was not introduced with those theories in mind and the record as it exists does not permit affirmance on those grounds. While such theories may or may not have been availing in this case, this case — and the unsuccessful search it prompts for some legal basis on which to affirm the trial court’s equitable decision— shows the Legislature’s wisdom in enacting Utah Code Ann. § 30-1-4.5 (1987).3 Had that statute been in effect at the relevant time, the trial court’s judgment would be entitled to affirmance, a result which is, regrettably, not possible in this case.
. The harshness is somewhat ameliorated by the fact that plaintiff received substantial life insurance benefits upon Andrew’s death. Her entitlement thereto has not been challenged.
. Of course, the resulting trust doctrine is an equitable one. If plaintiffs ex-husband’s creditor’s claims were valid ones and properly enforceable against the Barker Road property, plaintiffs conveyance to Andrew would be in fraud of those creditors and her "unclean hands’’ might well preclude application of the doctrine for her benefit.
. Section 30-1-4.5 provides:
(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who:
(a) are capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.