dissenting.
I dissent from the holding in Division 2 of the opinion directing the trial court to enter a directed verdict for the wife as to the three tracts of land.
The majority opinion sets forth the two lines of cases dealing with the requirements necessary for the creation of a resulting trust and concludes that the better view is that stated in Kimbrough v. Kimbrough, 99 Ga. 134 (25 SE 176) (1896) and Scales v. Scales, 235 Ga. 509 (220 SE2d 267) (1975). In my opinion the better view is that expressed by this court in Ashbaugh v. Ashbaugh, 222 Ga. 811 (152 SE2d 888) (1966) and Ward v. Ward, 186 Ga. 887 (199 SE 195) (1938).
This court now holds that there must be an agreement or understanding between the parties at the time of the conveyance in order to establish a resulting trust. This holding is in direct conflict with the majority view in the United States as well as the Georgia cases cited above. In Restatement of the Law, Trusts 2d, § 443 it is stated: "Where one person pays the purchase price for property which is transferred at his direction to another who is a natural object of his bounty, parol evidence is admissible to show that the payor intended that the transferee should not have the beneficial interest in the property, even though the property transferred was an interest in land and the Statute of Frauds is in force. The intention of the payor not to make a gift to the transferee may be shown not only by oral declarations of his intention, but also by the circumstances under which the transfer is made.” (Emphasis supplied.)
In Scott on Trusts, Yol. V, § 44-3, p. 3334, the majority *633rule is again stated as follows: "Even though the grantee is so related to the payor as to be a natural object of his bounty, parol evidence is admissible to rebut the presumption of a gift and to show that a trust was intended.” This same authority, in commenting on the quantum of evidence necessary to establish a resulting trust, stated: "The better view is that it is necessary to produce such evidence as is required to establish any other fact. As the court said in one case: 'It is the intention of the parties in such cases that must control, and what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act.’ ” Ibid., p. 3347.
Code § 108-116 clearly states that "a resulting trust in favor of the one paying the money may be shown and the presumption [of a gift] rebutted.” This Code section does not require that a resulting trust can only be shown by an express agreement at the time a gift is made. The majority view so holding is too restrictive of the clear intent of the Code section and eliminates the possibility of a resulting trust based on the intention of the parties and the totality of the circumstances surrounding the conveyance. Whether or not the presumption in favor of a gift has been rebutted should be a question for a jury under proper instructions by the court. As pointed out by the court in Ashbaugh, supra, Code § 48-101 declares that to constitute a valid gift"there shall be the intention to give by the donor. . .” (Emphasis suppliéd.) A denial of such intention by the donor at the time of making the conveyance, together with subsequent acts and conduct, creates a genuine issue of a material fact sufficient to defeat a motion for summary judgment or directed, verdict.
The evidence in this case showed that the appellee husband furnished all the money from his personal funds; that he negotiated the actual purchase and agreed to the purchase price without consulting his wife; that he advised the brokers why he wanted the property in the name of his wife; that he exercised dominion and control over the property after the purchase. This evidence clearly presented questions of fact from which the jury *634was authorized to find a resulting trust on the property in favor of the husband.
I am authorized to state that Chief Justice Nichols and Justice Hall join in this dissent.