dissent"> Fox, Pkesident,

dissenting:

I think it clear that as the statute law now is, Code, 36-1-4, the bill of the plaintiffs alleges good grounds for relief in equity; but the deed out of which a trust in favor of the grantor therein is alleged to have arisen was executed and delivered on September 6, 1928, more than two years prior to the effective date of our present Code, which, for the first time contained all the provisions of Code, 36-1-4. We must, therefore, look to the law as it existed at the date of the deed aforesaid, and when this is done, I am inclined to the view that a grantor in a deed could not, at that time, create a direct trust in his favor through a verbal agreement with his grantee, but could, in that manner, create such a trust in favor of a third party. The cases cited in the majority opinion, I think, sustain that position, and, although the question is not free from doubt, I do not dissent from the holding of the majority on that point.

The point of my dissent is this: The bill alleges that the grantees in the deed of September 6, 1928, and since the death of the grantor in said deed, have recognized, and, in legal effect, admitted the alleged trust, by paying *183 to the heirs of said grantor certain moneys derived from the sale of lands, which, in part, constituted the substance of the trust alleged in the bill; and also that the proceeds of other sales of the alleged trust property, amounting in the aggregate to a substantial sum of money, were, in the lifetime of the grantor in said deed, used in paying his debts, and providing for him means of support in his declining years. In my opinion, until there has been a full development of the merits of the cause, by the taking of proof, which should involve a complete discovery of how, and in what circumstances, these funds were distributed, the question of whether there had been created and recognized a trust relation binding on the grantees' in the deed aforesaid, should not be finally determined. The fact, if it be a fact, that a trust, such as is here sought to be enforced, cannot be created by a verbal agreement, contradictory of the deed, does not necessarily require that such a trust can only be created by a writing. In my opinion, where the trust is directly or impliedly admitted, the necessity for a writing does' not exist. For this reason I think the allegation as to distribution is important, and makes the bill sufficient on demurrer. Perhaps the bill should be amended so as to provide a more solid basis for the inquiry suggested, but as it stands, it is, in my opinion, sufficient to warrant such inquiry. On this ground alone, I would reverse the rulings of the Circuit Court sustaining defendants’ demurrer to plaintiffs’ bill, and remand the cause for further proceedings.

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