Nelle. Addison, as the ad-ministratrix of the estate of J. A. Addison, deceased, and Gertrude Clark, administra-trix of the estate of J. G. Clark, deceased, instituted this suit against M. F. Ball to recover an undivided one-half interest in 80 acres of land, upon allegations to the effect that the two decedents named were, during their lifetime, partners dealing in land, oil stock, and gas leases; that on or about March 15, 1917, J. A. Addison, acting for and in behalf of the firm of Addison and Clark, entered into an agreement with the defendant, Ball, to purchase the land in controversy, for a consideration of $2,000 in cash and the assumption of an outstanding mortgage lien note against the , land for $1,000. It was further alleged that J. A. Addison and M. F. Ball each paid $1,000 of the cash consideration, and that it was agreed between them at the time that the deed should be taken in the name of M. F. Ball as grantee; and that the property was purchased from A. M. Boutwell, under and by virtue of that agreement; Addison and Ball each paying the cash consideration of $1,000. It was further alleged that the $1,000 paid by Addison was paid out of the partnership funds of Clark and Addison.
It was further alleged that on August 11, 1919, M. F. Ball sold an oil and gas lease on one-halfi of the land to a partnership firm *878composed of several persons, of whom the said J. G. Clark and J. A. Addison were members; that said Clark and Addison paid $200 of the consideration for the lease, and thereby became the owner of an undivided one-twentieth interest in said lease, and that by reason of their one-half interest in the title to the land they became the owners and were entitled to receive one-half of the rentals realized by defendant Ball, which amounted to $80. In their petition plaintiffs prayed for a recovery of an undivided one-half interest in the land and one-half of the rentals; each of the plaintiffs as legal representatives of said decedents, respectively, being entitled to one-half of the recovery. Plaintiffs further prayed for general relief.
In addition to a general denial the defendant pleaded specially that he never at any time had any transaction with J. G. Olark, deceased, in any way connected with the purchase of the land, but that, after he had purchased the land from Boutwell on March 15, 1917, he entered into an agreement with J. A. Addison, deceased, who was acting for and in behalf of the Nocona National Bank, of which he was president, by the terms of which he borrowed the sum of $1,000 from the bank, or Addison, to pay on the purchase price of the land, and that after the purchase was consummated, it was orally agreed between the defendant and J. A. Addison, acting for and on behalf of the bank, that said loan of $1,000 would be secured by an oral lien against the land until such timé as defendant would repay the same.
It was further alleged that on August 12, 1919, the defendant paid to J. A. Addison the sum of $1,000, with interest thereon in full satisfaction of said loan, and that the oral lien so given to secure the same was thereby discharged. It was further alleged that at the time the defendant took title to the land no agreement had been made that Addison would, or should, have any interest therein.
The case was. tried before the court without a jury, and judgment was rendered, denying plaintiffs a recovery of any interest in the land. Plaintiffs have appealed.
The court filed the following findings of fact and conclusions of law:
“At the request of plaintiffs I make and file the following as my conclusions of fact and law.
“(1) On March 15, 1917, A. M. Boutwell conveyed to M. P. Ball 80 acres of land situated in Montague county, Tex., and more fully described in plaintiffs’ petition. The purchase price for said land was $3,000, $2,000 of which was paid by deposit to the credit of A., M. Boutwell in the Nocona National Bank on March 8, 1917. On March 7, 1917, the defendant. M. E. Ball, borrowed from the Noeona National Bank $2,000 in money. The remaining $1,000 due for the purchase price of the land has been taken care of by the defendant, M. E. Ball, but the said M. P. Ball, after the death of J. A. Addison, made an effort to induce Mrs. Addison to raise $500 to be used in paying the remainder of the purchase price for said land.
.“(2) According to the statements of M. P. Ball made to several different parties, he and J. A. Addison were partners in the land and oil business, and on September 5, 1919, M. P. Ball made a written statement purporting to give a list of some partnership property owned by him and J. A. Addison, in which the 80 acres of land in controversy in this suit was named. This written statement was in the handwriting of M. P. Ball, but was nevér acknowledged before a notary. M. P. Ball, the defendant, has always rented the land in controversy, collected the rents therefor, and paid the taxes thereon, and, in general, has exercised ownership over the property. The defendant, Ball, made verbal admission to several people that J. A. Addison owned an interest in this land, but there is nothing in evidence to show that said Addison ever paid any part of the consideration or that there was, an agreement between him and Ball that he, Addison, should have an interest in the ^and, made prior to the purchase of said land.
“Conclusion of Law.
“In my judgment, the evidence in this case is too uncertain to justify me in finding that plaintiff ever had any ipterest in this land.”
We have all read the .statement of facts in full and shall attempt to set out the evidence hearing upon the pivotal issue as to whether or not a resulting trust of an undivided one-half interest in the land was established in behalf of plaintiff ’Nelle Addison as administratrix of the estate of J. A. Addison, deceased, or in behalf of both plaintiffs jointly, as legal representatives of their respective decedents.
Plaintiff Mrs. Nelle Addison, who was the surviving wife of J. A. Addison, deceased, testified as follows:
“I live in Montague county. I am the admin-istratrix of J. A. Addison. During the year 1918 or 1919 I had a conversation with M. P. Ball with reference to the ownership of an 80-acre tract of land located near Eagle Point, which is known as the J. P. Lemon’s farm. I was living in Nocona, Tex., on the north side of town at the time. My home was between the business part of town and Mr. Ball’s residence. The first conversation we had about it was during the oil boom; we were just talking about oil and things, and Mr. Ball told me about this 80 acres at this time. He told me that Mr. Addison had told him that he had confidence in his ability, and that anything he would pick up that way that he would go half with him, and he told me that they owned this 80-acre tract near,the Williams well. He told me that it was the partnership property of him and Mr. Addison. He first asked me if Mr. Addison had told me about this property — this 80 acres— and I told him at that time that he had not, and he said, Well, we own this 80 acres; he and I together.’ He said that Mr. Addison had agreed that anything he wanted to buy that way, leases, anything he thought was good out there or anywhere else, that he would take half of it; that they would buy it together, and he told me that they bought this together. We *879have talked about this a number of times; just at different times mentioning it, more than once he said that, if they got oil at the "Williams well, it would make us rich. He said, ‘Us.’ We talked of it a number of ways. I don’t hare any idea how many times we have talked about it. I am sure we have talked about it more than three times, but I know he has talked to me numbers of times about it, because he would stop there numbers of times in passing, and I would be out on the porch or in the yard. I was terribly excited about it. I thought we would get wealthy right now. This conversation we first had was during the boom at Burk-burnett, along about the time of the excitement at the Williams well. It was during Mr. Addison’s lifetime, nearly two years before his death. The first time that Mr. Ball ever told me that all of the land belonged to him was this past 'August, 1922. Every time I talked with him he never insinuated that it wasn’t part mine until that time. I said, ‘Do I still have an interest in that?’ and he said ‘No.’ He told me that at the time I lost my interest in the land was before Mr. Addison’s death; that Mr. Addison told him he had rather have the money than the land and get out of it. And this past summer was the first time that he had told me this. * * * He did tell me this last summer that at the time they leased the land Mr. Ad‘dison wanted his interest out, and told me that at the time of the leasing that Mr. Addison said he had rather have the money than the land. I believe is the way he put it. The first conversation I had with him, in which he told me that he and Mr. Addison were interest in the land together, was during the excitement over at the Williams well. * * * Since Mr. Addison’s death, Mr. Ball came to my home on the south side of Nocona and wanted me to pay $500 on' a loan against the place. He said that there was $1,000 against it, and he wanted me to pay $500 of it. I told him that I could not get any money in any way to pay this $500, and then he asked me if I had collected my insurance. This conversation was in 1921; anyway, it was in the winter just following Mr. Addison’s death; along in January or February.”
F. A. Berry, witness for plaintiff, testified as follows:
“My name is B. A. Berry. > I live in Hollis, Okl. I am a brother of Mrs. Addison. After Mr. Addison’s death in 1920, I had an active part in looking after his business interests. I was in Nocona off and on all along. While I was there looking after Mr. Addison’s, interests, I had a conversation with M. F. Ball with reference to this 80 acres of land located near Eagle Point. It was in the spring of 1920, I believe; he came to me one day and asked me what I thought we had better do about a $1,-000 note that was past due on the tract of land out north of town, and I asked him what tract it was, and told him I didn’t know anything about it, and he went ahead and said they had bought SO acres; an 80-acre tract of the Lemon’s farm, he and Jim together, and there was a note then past due, and he says, ‘We have either got to pay it or let it go back.’ He asked me what I thought was best to do. I said I didn’t know anything about it. I asked him What the land was worth, and he said it .wasn’t worth much for farming purposes. I think he named $10, an acre as being a fair price for it; said they bought it for the oil and mineral rights; said they didn’t pay much down on it. My recollection is that he told me they had paid $500 down on it, and I said, ‘Well, if the land ! isn’t worth over $10 an acre, I don’t see any reason for flumping off $1,000 for $800 worth of property.’ I said, ‘Mrs. Addison doesn’t have any money now, anyway,’ and he said he didn’t. He says, T feel the same way about it. I think the best thing to do is to just let it go back.’ I didn’t know who it was; bought from or who the $1,000 was going to. I said, ‘That seems to be the best thing to do; you just use your own judgment.’ This conversation was about five months after Mr. Addison’s death. He said he and Jim Addison bought it together. * * * Yes, that is about the extent of the conversation. The discussion was not prompted by reference to the payment of $90 insurance money. I didn’t know anything about the $90 proposition until quite a while a,fter that. My recollection is that he told mé that they paid only $500 down on the land; anyway, it was a small amount.”
T. W. Williams, a witness for plaintiff, testified:
“My name is T. W. Williams. I live at Austin, Tex. I knew J. A. Addison and J. G. Clark in their lifetime. They were partners in land, oil,, and leases and other things. I know that they were partners, for I handled a place that belonged to them. I know from handling their affairs since their death that they were partners. Some time about September, 1921, I had a conversation with M. F. Ball with reference to the ownership of 80 acres of land located near Eagle Point, Tex. He and I sat down, and I asked him about this, and he told me in this conversation that Clark had nothing to do with it. He said Mr, Addison cautioned him not to let Clark know; anything about it, and he said it was him and Addison that owned the property, and I said to him, ‘Mr. Ball, don’t you know that when you leased that land that Mr. dark received his part of the lease money?’ and he said he didn’t know a thing about that. He didn’t state what interest Addison had in the property;' he said it belonged to him and Addison. This conversation took place after the deaths of both Clark and Addison. It was after the death of Clark; he died a year later than Addison; I think it was about August when he died and it was that same year. And Ball said later in that same conversation that he had taken up Addison’s part‘of it. * * * No, he didn’t say he had repaid Addison 'anything; he said when they got the lease money Addison just quit him. No, he didn’t tell me that Addison didn’t have an interest in it. He didn’t say he had taken up Addison’s interest; he said Addison just quit him. I didn’t say a minute ago that he told me Addison’s interest had been taken up by him; I said he told me that Addison just quit him. I think that is what I said. I am related to Jim Clark, he was my brother-in-law, I married his sister. No, I don’t believe he told me the details of how he and Addison made the trade. No, I don’t think he told me just where Addison’s interest came in the property. The conversation came up like this. I went up there trying to settle up the affairs *880of tliat estate, and I had 'in my mind that they owned an interest in that tract of land! I asked him if they did, and he told me that Jim Clark didn’t have any interest in it. Yes, I went up there to collect some money due on some insurance; that was on another case. That was the only time X ever discussed with Ball the matter of interest of Addison and Clark in that property; that was in September,’1921. But now as to that other question about the $90, if that conversation was touched upon at that present time, I know nothing about it. X was talking to him about the other. I approached Ball about this other matter about the insurance business prior to that time, and then I talked to him about it. I approached him direct on this question. He told me that Jim Clark had no interest in it, and that he and Addison owned it together; then later on in this same conversation he told me that Addison had dropped his interest, just quit the thing after he got his lease money.”
Plaintiff then introduced in evidence the following statement which was found among the papers of J. A. Addison, deceased, after two witnesses had testified that the same was in the handwriting of the defendant, and which the court ^ound to be in his handwriting:
“M. E. Ball.
“Box 10 Partnership Oil Stock M. E. Ball and J. A. Addison.
“Nocona, Texas, Sept. 5, 1919.
“270 shares in Nocona oil and gas.
“10 shares in Nocona Burk
“2 shares in B. B.
“2 shares in B. B. home No.’ 1.
“1 share in School House B. B.
“1 share in Safety Eirst Oil Co., Electra.
“$200 in lease on 40 acres Eagle Point.
“80 acres of land Eagle Point.
“V2 in 80-acre lease Bowerman near town, Clark and Skinner.
in 200-acre lease A. L. Steward southwest town.”
The defendant, Ball, testified as follows:
“My nam'e is M. E. Ball. I am the defendant in this case. Prior to the time Mr. Boutwell conveyed this property to me I had not discussed the matter of the purchase with Mr. Addison. Prior to the time the deed was made I had said nothing to Mr. Addison about his having any interest in the land. After I took the deed, I discussed it with him. It was after the property was paid for. I got '$1,000 of the purchase money from Mr. Addison; from the bank rather. At the time I got the $1,000 nothing was said about his getting or having an interest in the land.
“Mr. Crain: We object to that; the question asks about a transaction with the deceased.
“The Court: I will sustain the objection.
“Weil, I, got this money for the lease. I paid Mr. Addison the $1,000 and interest that I owed him. I did this immediately after I got the money for the lease. I have always paid the taxes on the land. I paid the repair bills. I paid the interest on the $1,000 note. Th'e note has been renewed. X .renewed it. Mr. Addison took the acknowledgment to the deed at the time I purchased the property. Prior to the time the deed was taken the acknowledgment taken, and the payment made-nothing was said between Mr. Addison and me relative to his having an interest in it. The deed was taken in the forenoon; that afternoon I discussed the matter with Mr. Addison. Prior to that time I had had no discussion with Mr. Addison relative to an interest in the land. I did not prepare that instrument on September 5th. I did not prepare any instrument showing an interest in Mr. Addison. Mr. Addison did not have any interest in the land after the lease was made on the 12th day of August.* His repT resentatives have not offered to pay any of the indebtedness against the land. .* * * I asked Mr. Addison if I could get the $1,000 before I closed this deal. I got the money before the deal was closed; he told me I could get it. I got the money the day the deed was made. I am positive I got the money the day the deed was made after I paid the magi for the place. I paid the man for the place that day. I got $1,000 from the bank, and I did not give a note for that. I don’t remember whether I borrowed any other money that month or not. I don’t remember whether I borrowed as much as $1,-000 at any other time that month. I gave Bout-well a check for $2,000 the day the deed was made, March 15th. -1 paid the $2,000 the day the deed was made, and assumed the $1,000 note. The same day the deed was made I paid Boutwell $2,000 for the land; I got the $1,000 from the bank right there that day. I don’t remember what the amount of the check was that I gave Boutwell. I disremember whether I gave him a check for $1,000 or $2,000. After this deed was made, Boutwell and his wife went out there. I went back in the afternoon and told Mr. Addison I wanted to fix up the note for the $1,000, and he said to just let it go, T will just hold an interest until you pay this money back.’ I didn’t owe Boutwell any other money at this time, didn't buy anything else from him and I didn’t give him any other cheek that month. I. paid the $1,000 back to the bank when I sold the lease. I sold the lease August 11th, something like two years. I paid it immediately after I executed the lease; I don’t remember the exact date, but it was immediately after I sold the lease. It seems to me that I remember something about that paper right after the transaction. I didn’t know until to-day that you had it. * * * Yes, someone, I cannot recall who, told me several days ago that the plaintiffs had some kind of a writing. I did repay the $1,000 I got from the bank.”
The defendant then rested.
In rebuttal plaintiff introduced Miss Ruth Davis as a witness, who had previously testified that the statement above copied was in the handwriting of the defendant Ball. She further testified as follows:
“I went to work in the Nocona National Bank the 3d of April, 1918. I am familiar with their business system; their deposit slips. I know the writing of J. A. Addison. This piece of paper is a deposit ticket. It is in the handwriting of J. A. Addison, deposited to the credit of A. M. Boiitwell; the amount is $2,000.
“Mr, Grain: We want to introduce this in evi*881dence for the purpose of impeaching the defendant'.
“The Court: What is the date of it?
“The Witness,: March 8th.
“Mr. Berison: We object to the introduction of it for the reason that it is immaterial, irrelevant to any issue in this case, and it is not properly shown that it is evidence or any credit or that any credit was given any one, and, if it was given any credit, the books showing the entry wherein the credit was given would be the best evidence that it is not shown that this ticket was kept and preserved as part of the records of the bank.
“The Court: I will overrule the objection. The bank keeps those deposit slips; it is a part of the system of bookkeeping in the regular course of the bank’s business. They keep them all as a part of the records.
“ ‘Plaintiffs’ Exhibit 2.
“ ‘The Nocona National Bank.
“ ‘Deposited by A. M. Boutwell.
“ ‘Nocona, Texas, March 8, 1917.
“‘Checks as follows:
«‘Ball.$2,000.00.’
“This is another deposit slip in Mr. Addison’s handwriting.
“Mr. Benson: We also object to that.
“The Court: I will overrule the objection.
“Mr. Benson: Note our exception for the reason heretofore stated.
“ ‘Plaintiffs’ Exhibit 3.
“ ‘The Nocona National Bank.
“ ‘Deposited by M. P. Ball.
“ ‘Nocona, Texas, March 6, 1917.
“ ‘Checks as follows:
‘“Note.$2,000.00.’”
Cross-examination by Mr. Benson:
“That word is note, n-o-t-e. No, I haven’t the note. Whose note was it? No, I didn’t look these transactions up before I came over here. Mr. Anderson got the deposit tickets for them. No, Mr. Anderson isn’t here. That in-dieates that a note was deposited for $2,000. And that two days following he paid Boutwell $2,000. That’s what the deposit slips indicate. I haven’t looked at the note register to see if Mr. Ball borrowed the money. But if Mr. Ball paid the note it is in his possession.”
The" only assignment of error presented in briefs for appellants reads as follows:
“The court erred in holding as a matter of law that the evidence in this case was too uncertain to justify his finding that the plaintiffs had ever had any interest in the land described in plaintiffs’ petition.”
It will be noted that the court found that the defendant, Ball, in his statements to several different parties admitted that he and J. A. Addison were partners in the land and oil business, and that on September 5, 1919, he made a written statement giving a list of such partnership property owned by him and Addison, in which the 80 acres of land in controversy was included, and that he also made admissions to several persons that J. A. Addison owned, an interest in the land. The court further found that, after the death of J. A. Addison, the defendant made an effort to induce the plaintiff Mrs. Addison to raisé $500 to be used in paying the remainder of the purchase price due on the land. But the court concluded his findings of fact with this statement:
“But there is nothing in evidence to show that said Addison ever paid any part of the consideration or that there was an agreement between him and Ball that he, Addison, should have an interest in the land, made prior to the purchase of said land.”
And in. his conclusions of law, the court said:,
“The. evidence in this case is' too uncertain to justify me in finding that plaintiff ever had any interest in this land.”
The defendant, Ball, did not deny making any of the statements attributed to him by any of the witnesses referred to in the court’s findings and set out in the evidence copied above. He did deny that the list of property purporting to have been made by him and showing that the land in controversy belonged to him and J. A. Addison, jointly, was in his handwriting, but the court discredited his testimony as to that, as shown by his findings.
We construe the court’s conclusions last above quoted as conclusions that the facts found by him, although true, were insufficient, as a matter of law, to prove that Addison ever paid any part of the consideration for the land, or that there was any agreement between him and Ball prior to its purchase that he should have 'an interest therein. We believe that in that conclusion the court erred.
It is a familiar rule that in order to establish a resulting trust in real estate in favor of one not named as a grantee in the deed, b^ reason of the fact that he has paid the purchase money or a part thereof, or has bound himself to such payment, it is necessary to show that such payment or agreement to pay occurred before or at the time of the purchase and as a part of the transaction. Parker v. Coop, 60 Tex. 111; Burns v. Veritas Oil Co. (Tex. Civ. App.) 230 S. W. 440, and other authorities there cited. If money furnished to pay the purchase price is furnished as a loan to the person who takes the legal title, then there is no resulting trust in favor of the lender. Guest v. Guest (Tex. Civ. App.) 208 S. W. 547.
However, the following was said in Pierce v. Fort, 60 Tex. 464:
“But as to the quantity and character of the proof necessary to show that the deed was a mortgage, the court instructed the jury as follows: T furthermore charge you that the law will not warrant you in finding the deed á mortgage, unless the fact that it was intended to *882be such be proven by at least two witnesses, oi by one witness and strong corroborating circumstances.’
“This was error. In support of it counsel for appellee refers us to the case of Moreland v. Barnhart, 44 Tex. 275. In that ease, Mr. Justice Reeves (on page 2S3) remarks as follows:
“ ‘That a deed absolute on its face may be shown by parol to - be intended as a trust has been often decided by this court. The trust must be shown with clearness and certainty, and in some of the cases it has been held that it must be shown by the testimony of more than one witness, unless his testimony be confirmed by corroborating circumstances.’
“He cites a number of eases from our reports, and among them Miller v Thatcher, 9 Tex. 482, in which the technical rule is laid down as it was given by the judge below in the trial of the present cause.
“But in the later case of Gaines v. The Exchange Bank, decided at Austin in 1882 (1 Law Reporter, p. 477), it was held that this technical rule was applicable only to cases in which it was sought to establish the trust by proving the declarations of a deceased trustee, or where the trustee was testifying to the trust in his own interest.”
The rule there announced, as to the quantum of proof necessary to establish a resulting trust in land, has been followed in the following cases: American Freehold Land Mortgage Co. v. Pace (Tex. Civ. App.) 56 S. W. 393 (local citation), writ of error refused 58 S. W. XV; Allen v. Williams (Tex. Civ. App.) 218 S. W. 135, writ of error dismissed for want of jurisdiction; Graves v. Graves (Tex. Civ. App.) 232 S. W. 543, writ of error refused; Hall v. Hall (Tex. Civ. App.) 198 S. W. 636, writ of error refused, and other decisions there cited.
In Allen v. Williams, supra, the court quoted with approval from the opinion of American Freehold Land Mortgage Co. v. Pace, cited above, relative to the strict rule as to the quantum of proof in such cases, usually termed the “two witness rule,” the following:
“Such a rule, we think, has no foundation in principle; for, if the evidence is of such a character, whether it comes from one or many witnesses, as to satisfy the conscience of the court that its equitable relief should be administered, no hesitancy should be felt in applying the principles that would govern the particular case. It would be a singular proposition to announce that the law more sacredly guards and protects the property of the citizen than it does his life or liberty; yet an admission of the insistence of appellant would necessarily lead to the conclusion that life or liberty could be lost on less evidence than would be required to deprive him of an apparent right in property.”
Under the doctrine of those decisions, which we believe is now well established in this state, and which is contrary to the more strict rule announced in other authorities, the conclusion reached by the trial judge in this case, and already referred to, was error, on account of which the judgment must be reversed and the cause remanded, and it is so ordered.