dissenting.
I respectfully dissent. Under the guise of “erroneous conceptions of the law of implied trusts,” the majority has undertaken to retry this case. Although the theory of constructive trust is an equitable theory, it does not allow this court to retry the case to achieve what we believe to be an equitable result. As the majority opinion notes, but fails to apply, the party seeking imposition of a constructive trust bears the burden of proving the existence of the trust by clear and convincing evidence. This case has now been determined four times, twice by judges who observed the witnesses and came to the conclusion that there was not the clear and convincing evidence necessary to establish an implied trust. In both instances, including the majority opinion, in which it has been determined that there is clear and convincing evidence to establish an implied trust, that result has been established from the “cold record.” So much for Rule 52(a), N.D.R. Civ.P. Lest it be argued that much of the testimony was by deposition, and that we are as able to read those depositions as is the trial court, I note that we no longer follow that theory. Rather, “A choice between two permissible views of the evidence is not clearly erroneous when the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations. [Citation omitted.] Prior decisions of this Court to the contrary are to be disregarded.” See comments to Rule 52(a), N.D.R.Civ.P., effective March 1, 1986.
The trial court made detailed findings, 82 to be exact. I do not intend to attempt to review all the evidence, or lack thereof, which obviously influenced the trial court to reach the decision it did. Some matters require further discussion, however.
It appears that the majority in its haste to reach what it considers to be an equitable result has drawn the best possible' inferences from the evidence adduced. That is not, of course, the function of this court. Rather, we are to review the record *804to determine whether or not there is clear and convincing evidence to support an implied trust; we are not to construe the evidence in the light most favorable to the establishment of an implied trust, and then review our inferences to determine whether or not there is clear and convincing evidence. As an example, the majority is enamored of the fact (not found by the trial court but apparently undisputed) that Oscar and June continued to live in the new home on the land until Claire’s death. The majority assumes that this is somehow inconsistent with the conveyance to Claire. That is the favorable inference which the majority draws from that fact. On the other hand, Claire lived in St. Paul; empty farm homes are not a rarity in North Dakota and it appears not at all unlikely that Claire, because he had no use for the farm home, would wish someone to live in the home to protect it from vandals. Furthermore, as the trial court found:
“Claire had a pattern of assisting Oscar financially before the transfer of the real estate to him by Oscar and June. Payments made by Claire to Oscar and June after the transfer of the real estate were consistent with his prior conduct.”
If we are to draw inferences, it would seem as likely that Claire intended to continue to allow Oscar and June to reside in a house for which he had no use and which could quickly deteriorate if left empty as that their continued occupancy of the house is somehow contrary to their intent to convey the property.
As a further example, the opinion ignores the findings that after Oscar and June signed the deeds conveying the land to Claire in 1977, Claire refused to respond to Oscar’s requests on income and expenses until the time of his death in 1980; that Claire had a heart attack in 1979; and that Oscar knew of Claire’s health condition after his heart attack. The inferences to be drawn from those findings are, of course, that Oscar and June waited until after Claire’s death, when he could no longer refute their claims, to challenge their conveyance of the property to Claire. Claire was unmarried and had no one close to testify in his behalf.
Finally, the majority opinion ignores the finding of the trial court that:
“The basic purpose and reason for the transfer of the land in LaMoure and Ransom County by Oscar and June to Claire was to avoid the claims of Oscar’s and June’s creditors. They were fearful that they would lose everything and had a desire to keep the land ‘in the family.’ ”
The majority, although recognizing that it is not clear whether this case was tried under a resulting-trust theory or a constructive-trust theory, or both, contends that the lower court approached the matter as if a legal and binding agreement between Oscar and Claire was required and that the trial court did not focus its finding on essential elements of a constructive trust. Those statements seem inconsistent, for if the case was not tried on a constructive-trust theory, there is no obligation of the trial court to focus on a constructive trust. It was not clear, even at oral argument, whether Oscar was urging a resulting trust, a constructive trust, or both. To chastise the trial court for not “focusing” on elements of a constructive trust thus seems unwarranted. Oscar bore the burden of proving the existence of a constructive trust by clear and convincing evidence. “[Ujnder the clear and convincing evidence standard, the evidence must be such that the trier of fact is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction.” Zundel v. Zundel, 278 N.W.2d 123, 130 (N.D.1979). When the trial court does not find, by clear and convincing evidence, the existence of a constructive trust, and the record contains substantial evidence sustaining that decision, this court should not substitute its judgment for that of the trial court. See Zundel, supra; Kadrmas v. Kadrmas, 264 N.W.2d 892 (N.D.1978).
In support of its position that an implied trust does not require a complete and binding agreement, the majority cites Farmers’ State Bank of Gladstone v. Anton, 51 N.D. 202, 199 N.W. 582 (1924), but that *805case only held that an agreement to extend the time to redeem is not rendered unenforceable merely because it rests in parol nor because no time within which redemption must be made is specified in the agreement. But the evidence in that case did indicate that the agreement permitting the defendants to redeem was to be for the sum paid by the plaintiff with interest at 8 percent. Here, no terms of repurchase have been introduced in evidence. The more than one page of directions in the majority opinion supplying some of the terms to be used on remand is simply indicative of the fact that there was no agreement between Claire and Oscar and June to repurchase.
As a matter of personal preference I like the result reached by the majority opinion. Claire is dead and has no one apparently dependent upon him. His beneficiaries are a natural son, adopted by a married couple, and a cousin. At the time of Claire’s death Oscar and June were both living and the land had been theirs. Were I permitted to choose on the basis of heart rather than mind I would join the majority opinion. Because we are not to so indulge ourselves I must dissent.