On Motion for Rehearing. The judgment was affirmed upon the holding that the whole of the property involved belonged to the separate estate of Mrs. Solether, because of a resulting trust in her favor therefor. We have concluded upon rehearing that we erred in that holding.
To support a claim of a resulting trust such as that asserted here, it must appear that the consideration was paid (or assumed) by the claimant, and the trust created, at the very time and by reason of the very facts of the transaction itself. Lacey v. Clements, 36 Tex. 661; Parker v. Coop, 60 Tex. 111; Gardner v. Randell, 70 Tex. 456, 7 S.W. 781. In Parker v. Coop, supra, this rule, as stated in Perry on Trusts, is approved: "The trust must result, if at all, at the instant the deed is taken, and the legal title vests in the grantee. No oral agreements, and no payments, before or after the title is taken, will create a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from the transaction itself."
Undoubtedly a resulting trust was created in favor of the wife as to an undivided one-half interest in the property, because, at the time it was acquired, one-half of the consideration therefor was paid in cash out of her separate funds.
But the remaining one-half of the consideration was not assumed by her, nor did she become bound therefor on her own account, at the time of the transaction, whereas the law is that a party not so obligated or bound cannot afterwards set up a resulting trust such as that asserted by defendant in error. Burns v. Veritas Oil Co. (Tex.Civ.App.) 230 S.W. 440.
The deferred obligation, as evidenced by the husband's note, became a community debt, which was afterwards paid with community funds; that is, with money borrowed by the husband from a third party. Goddard v. Reagan,8 Tex. Civ. App. 272, 28 S.W. 352.
These facts irrevocably fixed in the community the title to one-half the property thus acquired, at least as to third parties, who could not, without notice, be bound by secret intentions or understandings of husband and wife concerning that title.
We hold, under the facts of the case, and upon the authorities cited, that an undivided one-half of the property involved belongs to the separate estate of Nellie Wood Solether, but the other half is a part of the community estate of Nellie Wood Solether and her husband, and was therefore subject to the lien asserted by plaintiff in error. It was said in Goodard v. Reagan, supra, a case precisely in point in principle, that: "It also appeared that of $1,000, which was the consideration paid for the 200-acre tract, $700 was the money of the wife. The other $300 was borrowed from one Roach, for which the joint note of Reagan and wife was given, and the money so obtained was paid for the land. Some four or five weeks after the land had been thus paid for and acquired, the note given to Roach was paid out of funds of the wife, which had been received from Tennessee. It is claimed that from these facts it appears that the whole of the consideration for the 200 acres was paid with the wife's separate means. But this contention is contrary to the decisions of the supreme court. The money borrowed from Roach was community funds; the note given to him was a community debt, and when paid out of the wife's money became, perhaps, a claim in her favor against the common estate, or against her husband. The title to the land had, however, been acquired, and its status was fixed at the time of its acquisition. As $300 of the price paid for it was common funds, and $700 the separate funds of the wife, the equitable title in a three-tenths interest vested in the community estate, and seven-tenths in the wife. Heidenheimer v. McKeen,63 Tex. 229; Parker v. Coop, 60 Tex. 117. The court below held the whole of the 200 acres to have been the *Page 943 separate property of the wife, and for this the judgment must be reversed."
Plaintiff in error's motion for rehearing must be granted, the judgment of affirmance set aside, and the judgment of the trial court reversed, and the cause remanded.