
    THOMPSON vs. RENOE.
    S. A purchased a tract of land at a government land sale in 1819—paid one-third of the pur* chase money—the balance payable in instalments. Before the part payments became due A died and his- widow completed the purchase with her own funds. A patent issued in the name of A. Held,
    That the widow is not a stranger to the transaction. That a trust estate in the land equivalent to the amount paid by her resulted in her favor,
    2. A person who takes title from the heirs of a patentee with knowledge that the purchase money was paid by another, becomes a trustee for the latter; and the land in his hands, stands charged with the trust as though no transfer had taken place.
    3. Where a widow claims land in her own right, the fact that dower has been allotted to her., does not estop her or those claiming under her from asserting such right, j-
    
      ERROR TO CALLAWAY CIRCUIT COURT.
    Sheely for plaintiff.
    The administrators of Philip Dirtin having used the money of the widow of said Philip Dirtin in paying for said land and taking (he patent in the name of said Philip Dirtin dec’d, created a resulting trust in favor of Mary Dirtin the widow of said Philip. McGuire vs. McGowan 4 Desan 491 ; Perry vs. Head 1 A. IC. Marshall 47; Letcher vs. Letcher’s heirs 4 J. J. Marshall 592 ; Elliott vs. Armstrong 2 Blackford 198 j Jemison vs. Graves 2 Blackford 440 ; Doyle vs. Sleeper 1 Dana 536 ; Boyd vs. McLean 1 J, C. R, 582; Botsford vs. Burr 2 J. C. R. 409; Pierce vs. Pierce 7 Ben Monroe 439 ; German vs. Gabbaid 3 Binney 304.
    The said two-thirds of the purchase money of said land having been furnished by said Mary Dirtin, a trust was created by implication of law in her favor and her assigns stand in and occupy the same position occupied by Mary Dirtin. See same authorities ; ICisler vs. Kisler 2 Watts 323 ; Pinney vs. Fellows 15 Vermont 525 ; Fonblanques Equity 395.
    A trust created by implication of law need not b.e in writing. Kisler vs. Kisler 2 Watts Rep. 323 ; Elliott vs. Aimstrong 2 Blackford 198.
    A purchaser of land with notice of an existing trust becomes himself a trustee notwithstanding the consideration he may have paid. See Murray vs. Ballow 1 John C. R. 5665 Scoby vs. Blanchard 3 Hew Hampshire Rep. 170; Pritchard vs. Brown 4 New Hampshire R. 397.
    Reed & Hardin for defendant.
    The counsel for defendant contend that the court below committed no, error for these reasons:
    1st, The payment of the purchase money by Mary Dirtin was not made by any consent of, or arrangement, or agreement with (he heirs of her deceased husband. She was an intruder into the transaction and hence could create no trust of any kind in her own favor,
    2d. It is clearly settled that a trust, not within the statute of frauds, and which may be shown without writing, results from the original transaction at the time it takes place and at no other time, and is founded ®n the actual payment of the money at the time of the purchase and on no other ground ; after a party has made a purchase with his own moneys or credit, a subsequent tender or payment of the money, cannot attach by relation, a trust, to the oiiginal purchase 4 Kent 305 and authorities cited in the marginal note. Rotsford vs. Burr 2 Johns Ch. Rep. 408-14 ; Steere vs. Steere 5 Johns Ch. Rep. 19.
    3d. Mary Dirtin, the pietended cestui que trust, at the death of her husband in 1821 was entitled to as her dower, there being no lawful issue, to the one equal half of his lands for and during her natural life. 1 Ter. laws of Mo. 509, act entitled wills, descents and distribution, section 1. About the year 1840 under the provisions of this statute, she submitted to and received her assignment of dower without plea or objection, and in 1843 sold to plaintiff in error the very lands allotted to her, as her dower. It would seem then that the matter of a resulting trust is a late consideration, an after thought, sprung perhaps by plaintiff'in error in order to realize something from a loosing bargain. The facts of the case, indicate that Mary Dirtin never claimed that she created a resulting trust, or if she did that she afterwards waived all such rights by the reception of dower.
   McBride, judge,

delivered the opinion of the court.

David Thompson brought his bill in chancery in the Callaway circuit court, against Richard D Renoe, in which he alleges that at a sale of the public lands by the government of the United States, in the year 1819, one Philip Dirtin purchased a tract of land (describing it) containing about 180 acres at the price of $2 per acre, for whieh he paid at the time one-third of the purchase money and recived a credit for the remaining two-thirds ; that before the falling due of the said balance, to-wit in 1821 or 1822, Dirtin departed this life leaving a widow, Mary Dirtin, who subsequently paid the balance of the purchase money for the land ; that the patent issued in the name of Philip Dirtin; That the widow continued to reside on the land until the year 1840, when a petition was filed against her in the county court of Callaway county for a partition of said land, and at a subsequent term of that court, commissioners were appointed to allot and admeasure to the widow her part of said land, who after having made partition, reported the same to the county court, when the said court approved of and ratified the said partition. That in the year 1843, Mary Dirtin, for a valuable consideration, supposing the fee of said allotted land to be in her, sold, and by deed conveyed the same to the complainants, who went into possession and continued to hold the possession thereof, until the death of said Mary Dirtin, when he sold said land to one Bradley and put him in possession. That since the demise of said Mary, those claiming to be the heirs at law of Philip Dirtin deceased have proceeded to obtain partition of the real estate of said Philip, embracing the land purchased by complainant cf Mary Dirtin, and under an order of the county court, a sale has been made of the entire tract of land purchased by Philip Dirtin of the general government, (the same not being susceptible of division,) and Richard D. Renoe the defendant became the purchaser thereof, and now holds the lands against the rightful claim of the complainant, notwithstanding the said Renoe was fully advised of all the facts set forth in the bill. That by reason of the sale last aforesaid, the complainant has been forced to rescind his contract with Bradley.

To this bill the defendant filed a general demurrer, which, upon argument was sustained by the circuit court, when the case was brought to this court by writ of error.

The facts set out in the bill being admitted by the demurrer, the question is whether they make out a case which entitles the complainant to the aid of a court of equity.

It is conceded that if a stranger had voluntarily paid the balance due on the land, no trust would thereby have been created in his favor; for it is not in the power of an individual thus to raise a trust for his benefit; but it is considered that the widow in this case sustained to the subject a different relation. She was entitled, under the statute, to a dower interest in the land purchased by her husband, and this interest would have been lost to her unless the credit payments for the land were met according to the terms of the sale. If the administrator of Philip Dirtin had seen proper to pay the balance of the purchase money, then there would have existed no necessity for the widow to make the payment in order to save her dower. But if the administra* tor, either had not the means necessary, or having the means judged it most conducive to the interest of the estate, not to pay the balance, but let the land be forfeited for the non-payment, and to save her dower, the widow was compelled to raise the money and make the payments as they fell due, she is entitled by every principle of equity, either th a ratable proportion of the land thus paid for, or a lien upon it for the amount paid by her. Why is she not thus entitled? Her money has actually paid two-thirds of the purchase money for the land, and if she had not made the payments, it is probable that the amount paid by Philip Dirtin in advance for the land would have been lost to his estate.

The estate therefore, instead of losing any thing by her acts, has profited by them. The distributees of Philip Dirtin have no just cause to complain of this view of the subject, because the money paid by the widow constituted no part of Philip’s estate, which by course of law would have descended to them.

The facts charged in the bill, make out, under the foregoing views, a clear case of resulting trust, in favor of Mary Dirtin or those claim* ing under her, by bringing it within the rule that where an estate is paid for with the money of one individual and the title taken in the name of another, a trust arises in favor of the individual whose money has been used in the acquisition of the estate.

If we should regard Mary Dirtin as a tenant in common with the legatees of Philip Dirtin, and as having paid the balance of the purchase money, to save the land from forfeiture, her claim to indemnity from her co-tenants would be equally clear and conclusive. In either aspect, therefore, she is entitled to a ratable proportion of the land ac* quired by the purchase.

The bill further charges, that, the defendant Renoe, prior to his pur* chase, had notice that Mrs. Dirtin had paid, out of her funds, twdthirds of the purchase money for the land in controversy; taking a title, with a knowledge of these facts, Renoe becomes a trustee for her; and the land in his hands, stands charged with the trust, as though no transfer had taken place.

We do not regard the proceedings in the circuit court, allotting her dower or making partition of the land (it being uncertain which object was in contemplation) as estopping her or those claiming under her, from setting up and insisting upon her claim as made in the bill. It is obvious enough, that the proceedings had in the county court were had under a misapprehension of the law governing the rights of widows to dower. The act of 1817 was in force at the death of Philip Dirtin, the husband, and under that act, the widow would only be entitled to a dower interest of one-half of the land ; whilst under the act in force at the time of the proceedings in the county court, the widow would be entitled to one-half of the land absolutely; and it was under this last act that the partition was made. If her rights had really been what the commissioners and the circuit court supposed them to be, and what she appears to have acquiesced in, then most likely no question would have arisen in this case; but, after a sale' of the land allotted to her, and her death, it is ascertained that if she held only a dower estate, unthe act of 1817, her estate had terminated, and the land would revert der to the legatees of Philip Dirtin.

The judgment of the circuit court should, for the reasons aforesaid, be reversed, and the case remanded to the circuit court for further proceedings to be had not inconsistent with this opinion.  