Greaves v. Atkinson

Cooper, J., delivered the opinion of the court. Prior to the adoption of the code of 1857 a resulting trust arose' in favor of the wife when her money was used in the purchase of lands in his own name by the husband, under the same circumstances and to the same extent that such trust would have resulted to any other person supplying the purchase-money. 1 Perry on Trusts, 137, and note; 1 Pomeroy’s Eq. Jur. 422. When all the facts and circumstances of a purchase from a trustee in a resulting trust are shown, and it thereby appears that a person is a purchaser for value and entitled to protection as such, he may raise the defense by demurrer to a bill exhibited against him to subject the lands to the trust. Story’s Eq. Pl. 603. But when they do not so appear, the defense, being an affirmative one, must be raised by plea or answer. Story’s Eq. Pl. 604 and 605 ; 1 Dan. Chy. Pl. & Pr. 677 to 698. The facts disclosing the bona fides of the purchases under S. A. D. Greaves do not appear in the bill in this cause, and the demurrer should have been overruled. Leeree reversed, demumr overruled, and cause remanded.