dissenting.
I agree with the vacated opinion of the Court of Appeals that no resulting trust came into being for the benefit of Bitzegaio at the time title to the disputed lands passed to his friends Criss and Swango. Nowhere has Bitzegaio alleged that any valuable consideration existed for the oral agreement between himself, L. L. Criss, and Swango for the purchase of the land in issue. It is essential to the creation of a resulting trust that there must have been valuable consideration for the agreement. Hill v. Pollard, (1892) 132 Ind. 588, 32 N.E. 564; Schwab v. Schwab, (1959) 130 Ind.App. 108, 162 N.E.2d 329. He did not show up for the sale and provided none of the purchase money as did Criss and Swango. He took no action whatsoever in furtherance or recognition of his oral promise to pay one-third of the purchase price before title passed.
The claim for resulting trust is based here upon a parol agreement between the three men that they would buy the property together and each pay one-third of the purchase price. On this record the trial court was correct in determining that the case is a proper one for summary judgment, but it should have been rendered for the defendants below and against the plaintiff Bitze-gaio.