
    ALEXANDER ROGERS, Respondent, v. JOHN W. DONNELLAN, Appellant.
    1. Resulting Trust. — What Constitutes. — Co-Tenancy.—Partition. — Six persons purchased land, paying equal portions of the purchase-price and taking the deed in the name of one of them, K., who executed an instrument stating that he held it in trust for all, which instrument, however, was not recorded. Subsequently, a partition was made whereby K. with the consent of plaintiff and H., others of the co-tenants, conveyed the west half of the land to the other three co-tenants and they in turn conveyed to K. their interest in the east half, which K. was to hold in trust for plaintiff and H. Plaintiff, K. and H. paid equal portions of a bonus to the other three co-tenants on account of the east half being more valuable than the west half. Held, that plaintiff became the equitable owner of an undivided one-third of the east half, K. holding one-sixth of the east half in trust for him on account of the original purchase, and also one-sixth in trust for him on account of his payment of one-third of the bonus, and that there was a resulting trust in his favor to the extent of a one-third interest therein.
    -2. Trustee. — Covenant in Deed. — Effect on Grantor. — Estoppel to Testify. — A trustee is not estopped by his covenant of seisin and warranty in a trust deed from testifying in an action by the cestui que trust to establish the trust as against the grantee, that he notified the grantee of the interest of the cestui que trust prior to the execution of the trust deed.
    (No. 556.
    Decided Feb. 23, 1895.
    39 P. R. 494.)
    Appeal from the District Court of the Third Judicial District. Hon. George W. Bartch, Judge.
    
    Action by Alexander Rogers against John W. Donnellan for a perpetual injunction to prevent the defendant from selling plaintiff’s one-third interest in certain property and for -other equitable relief. From a judgment for plaintiff and irom an order overruling defendant’s motion for a new trial, be appeals.
    
      Affirmed.
    
    
      Mr. Frank Pierce, for appellant.
    Since the passage of the statute of frauds, most of the-authorities hold that an oral partition of land can not be-made. 2 Comp. Laws 1888, § 2831; Freeman on Co-tenancy & Par. §§ 397, 401; 1 Washburn on Real Prop. § 430; Browne on Stat. of Frauds, §§ 71, 397-8; Porter v.. Perkins, 5 Mass. 235; Porter v. Hill, 9 Mass. 34; Boio v.. Jewell, 18 N. H. 353; Woodhull v. Longstreet, 18 N. J. L. 414; Duncan v. Sylvester, 16 Me. 390; Chenrey v. Dale, 39 Me. 164. All the authorities hold that an oral partition is invalid unless it is accompanied by immediate and continuous change of possession. 17 Am. & Eng. Enc. of Law, 668 and cases cited; Tate v. Fashee, 117 Ind. 322; Patterson v. Martin, 33 W. Va. 494; Lanterman v. Williams, 55 Cal. 60; Vasey v. Trustees, 59 Ill. 188. See, especially, Woodhull v. Longstreet, 18 N. J. L. 414; Freeman on Co-tenancy & Par. § 399.
    
      Mr. A. Howatt and Messrs. Sutherland & Murphy, for respondent.
   Merritt, C. J.:

This action was brought to have the plaintiff’s title to-an undivided one-third interest in certain real estate in Salt Lake City established and confirmed against the defendant; to have it decreed that a certain deed of trust-executed by Edward A. Kessler and Enos D. Hoge to the defendant, as trustee, is no lien thereon; and for an injunction perpetually enjoining the defendant and his successors in trust from selling the same under the power contained in the deed of trust. There was a decree for the plaintiff, and defendant appeals.

The record discloses that on December 23, 1889, Edward A. Kessler, Enos D. Hoge, Joseph Baumgarten, Mr. Wallace, Harriett A. Partridge, and the plaintiff purchased certain real estate in Salt Lake City for $30,000, each of them paying one-sixth of the consideration, or $5,000. The deed was taken in the name of Kessler, who, within .a short time thereafter, executed a written declaration that he held the title in trust for himself and associates, •one-sixth to each. The declaration of trust was not recorded. A short time prior to September 23, 1892, the .several owners agreed to a division of the real estate, whereby the plaintiff, Kessler, and Hoge should take the •east half thereof, and Baumgarten, who had previously purchased Wallace’s interest in the property, and Partridge ■should take the west half; Kessler and Hoge and the plaintiff to pay to Baumgarten and Partridge $1,600, the ■east half being considered that much more valuable than the west half. On September 23, 189.2, in pursuance of this agreement, Baumgarten and Partridge conveyed to Kessler their undivided one-half of the east portion of the property, and Kessler, with the consent of Hoge and the ■plaintiff, executed to Baumgarten and Partridge a deed which purported to convey to them the undivided one-half of the west portion of the property; and Kessler, Hoge, and the plaintiff paid to_ Baumgarten and Partridge $1,600, •each of them contributing one-third thereof. On September 21, 1892, Kessler conveyed to Hoge an undivided one-third interest in the east half and on the same day Kess-ler and Hoge executed to the defendant, as trustee for D. D. Mallory, a deed of trust upon the east half, to secure ■a loan to Kessler and Hoge of $6,000, the deed making no mention of the interest of the plaintiff, and containing the usual covenants of seisin and warranty; the deed of trust being executed by Kessler in person and by the ■attorney in fact of Hoge, he being absent from the terri-dory. The plaintiff was not a party to the negotiations for the loan; was not aware till afterwards of the execution •of the deed of trust, and did not consent thereto; and .received no portion of the §6,000.

The above facts are undisputed. It is alleged by the ■plaintiff in his complaint that Frank Pierce,- who as the -agent of Mallory, made the loan, prepared the deed of trust, and paid the money, had notice during the negotiations, and before the deed was executed or the money paid, that the plaintiff was interested in the property cov•ered by the. deed of trust. This is denied by the defend•ant in his answer. Upon this issue the court below found for the plaintiff, and the defendant, on appeal, admits the ■sufficiency of the evidence to warrant the finding, but insists that the court below erred in two particulars: (1) .In holding that the plaintiff was the owner of one-third -of the property covered by the deed of trust, instead of ■only one-sixth thereof; and (2) in permitting Kessler, when called as a witness by the plaintiff, to answer, over ■the objection of the defendant, that he informed Pierce, the agent of Mallory, before the execution of the deed of trust, of the interest of the plaintiff in the property/ It is conceded by appellant that the plaintiff had an undivided one-sixth interest in the whole property, but it is •contended that he did not convey his interest in the west half to Baumgarten and Partridge, and took nothing by -the conveyance by Baumgarten and Partridge of their interest in the east half to Kessler. This is claimed to be .so because the plaintiff was not a party to either conveyance, and that, so far as the plaintiff was concerned, it was only a parol partition of the property, and void under the statute of frauds. What the effect was of the conveyance by Kessler, with the consent of plaintiff, to Bauin-farten and Partridge, of the undivided one-half of the -west portion, we need not consider, as it is not involved in this case. But we think it is clear that when Baum-garten and Partridge conveyed their portion in the east half to Kessler, under an agreement with Kessler, Hoge and the plaintiff, each of them paying qn e-third of the-$1,600 paid therefor, the title conveyed by Baumgarten and Partridge vested in Kessler, in trust for Kessler, Iioge, and the «plaintiff, and that thereupon the plaintiff became the equitable owner of an undivided one-third of the east half. Originally he had a one-sixth interest, the title to which was in Kessler in trust for him. By the conveyance from Baumgarten and Partridge to Kessler, the-plaintiff became the equitable owner of an undivided one-sixth in the east half, and thereafter was the owner of an undivided one-third thereof. The plaintiff acquired, therefore, his one-third interest in the east half by the payment of one-sixth of the original consideration, and one-third of the consideration paid to Baumgarten and Partridge for the conveyance from them, and the trust resulting therefrom.

It is conceded by the appellant that, if the several parties held their interests in the original purchase under a resulting trust, the division would be valid, even if by parol; but he contends that, because Kessler executed a declaration of trust, they then held under an express, and not a resulting, trust. The declaration of trust was not ' recorded, and became no part of the record title to the premises. It being admitted that a trust resulted from the original purchase and payment of the consideration by the several persons contributing thereto, we do not think that the mere fact that Kessler declared in writing what the law had already created, changed the character of the trust. The plaintiff did not on the trial introduce the-declaration of trust, but showed the transaction, and relied upon the trust created by law in his favor therefrom. We think the parties held under a resulting trust in their favor, and that the division was valid, if there had been no deeds exchanged. Freem. Coten. § 399. The respondent claims that the evidence shows sufficient performance of the contract to divide the property to take the case out of the statute of frauds, but we do not deem it necessary to consider that question. We think it apparent that the division was not void as within the statute of frauds, and that the court properly held that the plaintiff, at the time of the execution of the deed of trust, was the owner of an undivided one-third of the real estate covered thereby. When Kessler was called as a witness by plaintiff, and asked whether he informed Pierce of the plaintiff’s interest -in the property prior to the execution of the deed of trust thereon, the defendant objected thereto on the ground that the witness could not impeach, by his testimony, the deed of trust executed by him. Having in the deed of trust made covenants of seisin and warranty, Kessler would be estopped from denying the same in his own behalf, unless for such fraud or mistake as would impeach its validity. But we know of no rule of law that would preclude the plaintiff, who was not a party to the deed of trust, and not bound by the covenants of Kessler, from calling Kessler, and showing by him that, notwithstanding the covenants of the deed, the grantee therein had knowledge that the plaintiff was the equitable owner of an interest in the property described in the deed. There being no error in the record, the judgment is affirmed.

Smith and Kinra, JJ., concur.  