¶1(dissenting). The abstract of appellant does not show that he pleaded the statute of frauds, and the statute of frauds can not be availed of unless pleaded. St. Louis, I. M. & S. Ry. Co. v. Hall, 71 Ark. 302. Besides, I am of the opinion that the decision of the chancellor was correct on the facts. The lands in controversy were inherited by the wife of H. H. Spradling from her father, and in the division of her father’s estate they were allotted to her, but the deed was made to her husband, H. H. Spradling. Eli and Belle Kendall, the brother and sister of Mrs. Spradling, testified that they frequently talked with H. H. Spradling about this land, and he always referred to it as belonging to Jan and Darcey Spradling, and told them many times that he intended to turn it over to them as soon as they got old enough to properly manage it, as it was their mother’s land and belonged to her boys at her death.
¶2This was a solemn declaration that the land was held by him in trust for his deceased wife. His declarations, though made at a time subsequent to the execution of the deed, were in the nature of admissions of facts, out of which the law would impose upon him a resulting trust. Gainus v. Cannon, 42 Ark. 511; Leslie v. Bell, 73 Ark. 338.
¶3Appellant seeks to overcome this evidence by the testimony of Brice as to the declarations of Mrs. Spradling made at the time of the execution of the deed, and which are set out in the opinion of the majority. Brice also stated that H. H. Spradling at that time said: “That in case they had children this deed would not amount to anything.”
¶4Upon this testimony, as above stated, the chancellor found the issues of fact in favor of appellees, and Ido not think his finding was against the weight of the evidence.