Brackin v. Newman , 121 Ala. 311 ( 1898 )

McOLELLAN, C. J.

— If the complainant intended to present her -whole case in the amended bill she should have stricken out the original bill. Failing this the two together are to be taken as constituting the bill of complaint in the cause to which the demurrer of August 17th, 1898, was interposed. — Taunton & Brooks v. McIntosh, 46 Ala. 619; Adams v. Phillips, 75 Ala. 461; American Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163.

That the original and amended bills considered together present a case for relief which is barred by the statute of limitations of ten years, there can be no sort of doubt. The bill was filed in the year 1898. The prayer is for tlie declaration and enforcement of a resulting trust. It is shown' that in 1881 complainant’s husband purchased and paid for the land in question with complainant’s money and had' the' title thereto made to himself.. It is also averred that he went into possession under that title in his own right and continued to hold said possession under claim of right, title and ownership thence on to the time he conveyed the land to the respondent Newman since 1892; and that complainant became aware of the fact that her husband had taken the title in his own name immediately after the purchase in 1881. On these facts the statute of limitations begun to run in 1881, and at the end of ten years had not only barred'complainant’s present bill, but had operated to invest in her husband a perfect title to the land, equitable as well as legal, freed from any trust whatever. We are not to be understood as intimating that a different conclusion would be reached upon consideration of the amended bill dissociated from the original bill. To the contrary it would seem that the mere fact that the husband had the land conveyed to himself was such a repudiation of his trust relation toward the wife’s money with which he paid for it that he is to be taken from that time on as holding adversely to her. Of course the only trust possible of evolution out of the facts is one resting solely upon implications of law, and depending for existence upon principles of equity operating alone upon the fact that the wife’s money paid for the land. A parol trust in land cannot be created, and all which is said in the bill as to the agreement or understanding between the husband and wife to the' éffect that this money, the proceeds of land belonging to her statutory separate estate, should be reinvested inland for her benefit is of no consequence, and hence it was of equal unimportance that he never in terms repudiated this parol agreement or understanding. So that on the averments of the amended bill alone the trust was of that constructive sort against which the statute began to run upon the instant of its coming into being.—Robinson et al. v. Pierce, 24 So. Rep. 984.

Nor is complainant aided by the consideration that under the law of force in 1881 her husband was her statutory trustee, for, aside from other considerations which would seem to deprive that relation of effect in this case had it continued down to the present time, it in point of fact ceased on February 28, 1887, more than ten years before this bill was filed.

The decree sustaining the demurrer to the bill must be affirmed.