concurring. — I am content to affirm the order upon the ground stated by the Circuit Judge. The earnest, if not the sole, insistence of the appellant is that the bill makes out a proper case of a resulting trust. This equity, it seems to me, is destroyed by the inconsistent agreement set up.
*493While the bill alleges an equal payment of the purchase money by Murrell and Peterson and that they bought in equal interests, yet it. is asserted that Murrell was to have the turpentine rights and Peterson to have thereafter the right of possession of the said timber for his saw mill business.” There is nothing to show that the turpentine and milling rights were considered of equal value, nor that the former may no’t well have been the equivalent of all other interests in the land.
While the cases decide that an invalid oral agreement will not destroy the right to a resulting trust, yet that agreement should' not be wholly inconsistent with the implications the law creates from the acts of the parties.
The statute of frauds strikes down the oral agreement and to declare a resulting trust, an exact equality of division of interests in the lands purchased, would be to do what neither party contracted for and what under the circumstances would be inequitable to force upon either.
There remains but an ordinary case of breach of contract, for which the courts of law are open.
Hocker, J., concurs; Parkhill, J., absent on account of illness.