In the original opinion, the discussion relating to the statute 5. TRUSTS: of frauds dealt with Sections 11285 and 11286 of express the 1924 Code. On rehearing, appellant contends trusts: that the case is controlled by statutory certain authorities cited by him. Those evidence: pronouncements, generally speaking, grow out of applica- the predecessors of Section 10049 in the same bility of Code. The latter reads as follows: statute.
"Declarations or creations of trusts or powers in relation to real estate must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law."
That part of the legislative enactment referring to the express trust is now relied upon by appellant. This, however, does not apply to the facts revealed in the case at bar; but, on the other hand, the present controversy (if the "provision" *Page 1271 has any application at all) is controlled by the remaining portion of the section, to wit:
"But this provision does not apply to trusts resulting from the operation or construction of law."
Appellee's case was founded and built upon the frauds of appellant, and appellant obtained the property from Cass and Dubes by "fraud," under the pretext that the same would be given to appellee without further expense to him. More than this, Cass and Dubes furnished the consideration in the first instance, and in the second place, appellee paid the entire cost. Therefore, the "trust," if any, was not "express," but "resulting or constructive." Culp v. Price, 107 Iowa 133; Havner Land Co. v.MacGregor, 169 Iowa 5; Wahl v. Taylor, 176 Iowa 353; StateExchange Bank v. Nolan, 201 Iowa 722; Bogle v. Goldsworthy,202 Iowa 764. Also, see Ratigan v. Ratigan, 181 Iowa 860; SheffieldMilling Co. v. Heitzman, 192 Iowa 1288. Consequently, the parol evidence in controversy was admissible, under the circumstances of this case. Even the cases cited by appellant concede the legal principles here involved. Flanders v. Booge, 146 Iowa 675; Newisv. Topfer, 121 Iowa 433; and kindred authorities. No objection was made as to the form or nature of the action adopted to obtain the relief.
Accordingly, the appellant's petition for rehearing is overruled.