majority">Mr. Justice Morris

delivered the opinion of the Court:

A court of equity must regard with great suspicion any attempt to show a resulting trust in a transaction thirty years and upwards after the transaction has been consummated, and especially when the immediate parties to the transaction are both dead. Indeed, at one time, it was greatly questioned whether such an attempt ought to be allowed at all after the death of the person primarily interested and who is sought to be held as a trustee (Sanders on Uses and Trusts, 127-134); and even Sir Edward Sugden, in his work on Vendors and Purchasers, 414-19, doubted whether parol proof was admissible to prove such a trust against the answer of the alleged trustee denying the trust. But it seems now to be well established, both that parol testimony is admissible against an answer denying the trust, and that the trust may be proved after the death of the trustee. Story’s Equity Jurisprudence, Sec. 1201, and cases cited in notes; Boyd v. McLean, 1 John. Ch., 582, per Chancellor Kent; Prevost v. Gratz, 6 Wheaton, 481. Yet the rule remains that the most clear and positive proof is required under such circumstances to establish a trust. We are satisfied that such proof is not wanting in this case.

Whether, in putting up the estate at auction in 1859 it was the intention of the parties to procure a, valuation merely and thereby a basis of partition between themselves, or to convert the estate into personalty and a division of the proceeds of sale, is not clear. It is quite probable that the parties themselves had no very well defined views or purposes in the matter beyond the desire to make a division of the estate in some way. The sale was undoubtedly, so far as the testimony shows, a bona fide one, at which strangers to the estate might bid and get the property; and yet it is quite evident that the heirs reserved and actually exercised the right to bid in for themselves something approaching their respective shares in value. If there were any other bidders than the heirs, their bids were not deemed satisfactory; and the result was that the heirs took all the prop*565erty between themselves, some taking more, others less than their distributive shares, and paying to the others or receiving from them the difference in money. It is testified that there was a notion prevalent at the time that it was unsafe to take the title to real estate in the name of a married woman; and accordingly the property which was supposed to represent the shares of the two daughters who resided in Baltimore was conveyed to their respective husbands; and it is claimed that the conveyance to Doniphan was upon a similar consideration and for the same reason.

It is apparent, however, that Doniphan was not merely acting for his wife in the transaction, or to secure the equivalent of her distributive share. Beyond question, he was to some extent a purchaser; for he bid in three or four pieces of the property at a price amounting to upwards of three times the value of his wife’s distributive share of the estate. And although he afterwards surrendered his largest and most valuable purchase to the Baltimore heirs, the evidence of his intent is no less manifest to purchase for himself as much as he could of the estate. It is of no consequence where he procured the money with which he intended to consummate these purchases, whether it was the result of his own earnings or of those of his wife, or whether it was money in any manner derived to her from her father. The law, as it existed at the time, made it all the money of the husband, no matter from what source it came.

But it is also apparent that Doniphan’s primary intention was to secure his wife’s share of the property, and that without payment for ’it otherwise than by a credit to him of a sum of money equal to the value of such share. This sum was actually credited to him in the purchase, as it was to •each of the other parties, and it did not fall 'much below his first purchase ($1,100). Indeed, if we allow for the distributive share of the personalty that was payable at the time to Mrs. Doniphan ($188.43), we find that her aggregate interest at the time in her father’s estate ($922,325 and $188.43) amounted to $1,110.75, or only $10.75 beyond the amount *566of Doniphan’s first purchase. While it is true that he was entitled, as we have already stated, under the condition of the law as it then existed, to receive his wife’s share of the personalty, it is no violent inference from the testimony to assume that he permitted this sum to go to make up the payment for his first purchase and thereby to inure to the benefit of the owner of the property; and that he never actually received the money. At all events, the substantial part of the payment for this purchase was not actually money, but merely credit of the amount of the value of his wife’s share of her father’s real estate. The payment was by the wife, and not by the husband; and if this case were between other parties than husband and yfife, or their representatives, there would be no room whatever for doubt that the nominal purchaser took the property undér a resulting trust for the person from whom the consideration moved. Why should a different rule prevail in equity as between husband and wife, unless there is some rigid requirement of the law to demand it? Such a requirement is presumed to be found in the assumption that there was a conversion by the wife in this instance of her interest in the realty and its change into money; that this money thereupon became the absolute property of the husband; and that when he used this money in the purchase of the realty, he was using his own and not his wife’s money; and that therefore there could be no resulting trust for her benefit. The artificial character of this argument is quite apparent; and the conclusions to be adduced from it are undoubtedly antagonistic to the true purposes and intentions of the parties. Confessedly there was no actual conversion of the realty into money by Mrs. Doniphan. The conversion, if it is to be construed to have occurred at all, was purely technical — the legal result of the transaction, and not the actual, declared or expressed intention of the parties. Should a married woman be deprived of the beneficial ownership of property, to which otherwise she is undoubtedly entitled, by the interposition of a technicality *567that is based upon intention, when at the same time the law places her under a disability that prevents any such intention from being carried into effect, by disabling her from entering into contracts except in a very restricted manner? We cannot think so. We cannot infer an intention in this case on the part of Mrs. Doniphan to convert her real estate into money. Such intention, if it existed, should be clearly proved. We find no proof of it in the record; and we cannot regard as proof a mere inference from the form of the transaction plainly antagonistic to the substance of it.

We think this conclusion is sustained not only by reason, but by numerous authorities. See 2 Story’s Eq. Jur., Sec. 1214; Wales v. Newbould, 9 Mich., 45 ; Weeks v. Haas, 3 Watts & Sergeant, 520; Jones v. Jones, I Bland, 443, 455 ; Lynn v. Gephart, 27 Md., 547.

In the case last cited, Lynn v. Gephart, the Court of Appeals of Maryland said: ‘‘The inclination of courts of equity upon this branch of jurisprudence is not generally to change the quality of the property unless there is some clear intention or act by which a definite character, either as money or as land, has been unequivocally fixed upon it throughout.” And in the case of Jones v. Jones, 1 Bland, 455, Chancellor Bland very forcibly remarked: “A married woman who is entitled to an undivided part of a real estate, cannot be in any way deprived of it without her express consent; which by the common law, can only be obtained by a fine, or, under the acts of Assembly, by her privy examination and acknowledgment of a deed conveying it to another. From necessity, and for the purpose of effecting a partition of a real estate, which is incapable of division without loss, it may be sold and converted into personalty. But a change in the nature of property, in order to attain a particular object, should not divest the owner of his right to it, to any extent whatever.”

We do not understand that the case or Ermold v. Newkirk, 16 Penn. St., 417, is antagonistic to the position here assumed. There, there had been an actual sale and conver*568sion of one piece of property, and the purchase of another with the proceeds; and the purchase was held to be by the husband on his own account, and not in trust for his wife, to whom belonged the property that had been sold.

The case of Weeks v. Haas, 3 Watts & Serg., 524, also in the State of Pennsylvania, seems to be more directly in point. That case was very like the present; and the Supreme Court of Pennsylvania, by Chief Justice Gibson, who delivered the opinion, held that the object of the parties being partition, the form of the deed was of no consequence, and the husband took a resulting trust for his wife. And in the case of Fogelsonger v. Somerville, 6 Serg. & Rawle, 267, cited with approval in Weeks v. Haas, the same principle was held. For, although the husband was allowed to hold in his own right as much as he had actually paid for, he was held as a trustee for as much of the property as was the equivalent of the wife’s distributive share.

We think, therefore, that it is only just and equitable that the first so-called purchase made by Doniphan for $1,100 should be regarded as having been made in trust for his wife and as the equivalent of her share of her father’s estate, and that her one-sixth interest in her father’s estate was merged in this purchase.

The case is very different, however, with regard to his subsequent purchase. There it is plain that he was acting for himself and not for his wife; and it is of no consequence from what source the money was derived to make the purchase. For this property there was money actually paid by him; and the purchase was entirely independent of any effort or purpose to secure his wife’s distributive share of the estate. We regard as wholly unsustained by the proof the attempt to show that he was financially unable to make this purchase; and, as we have stated, it is of no consequence whether he was or not. ' We find no evidence whatever of a resulting trust in this instance; and we are of opinion that Doniphan took this purchase free and clear of any claim of his wife, legal or equitable, other than her dower interest.

*569Under the peculiar circumstances of this case, we cannot regard the defense of laches as available- against the heirs of the wife. While, as we have already stated, we must regard with great suspicion an attempt to declare a resulting trust in a transaction that for thirty years and upwards has presented no indication of any such trust, yet it is not to be forgotten that the statute of limitations would not have barred an action of ejectment in this case, if the heirs of the wife had been put to such action; that her disability of coverture precluded the running of the statute during the time of the joint lives of herself and her husband; that the period of ten years allowed for the institution of such a suit by the statute of limitations after the removal of the disability had not elapsed when this bill was filed; and that the very natural mistake of Mrs. Doniphan in supposing herself the owner of the property under the will of her husband, although to some extent only a mistake of law, might very well be regarded as a sufficient excuse for her failure to institute any legal proceedings for the assertion of her rights during her lifetime.

Neither can we regard the statement of Mrs. Doniphan in her petition for letters testamentary on the will of her husband, to the effect that the estate devised and bequeathed to her by him consisted, with other property, of two small frame houses, which are agreed to be upon the property in controversy in this suit, as either an estoppel upon her against the assertion of her rights as formulated in the bill of complaint in this case, or as admission of the character of the transaction in 1859 as being a conversion of her father’s realty into personalty and an application of the latter by the husband to his own uses. If this was a mistake it injured no one, and no one was misled by it to his detriment. Consequently, there is no good reason to regard it in the light of an estoppel. Nor does it tend much, if at all, to show what view Mrs. Doniphan took of the transaction of 1859. As a matter of fact, there was in William T. Doniphan a legal title to the property; and he did have *570something that might well be the subject of devise; and the devise, if the will had been effectual instead of being inconsistent with the theory of a resulting trust, would have effectively accomplished the purposes of such a trust.

It is conceded that, as the record now stands, inasmuch as Mrs. Doniphan never executed any conveyance of her interest in the property to which her husband took title, she retained the legal title to one-sixth undivided interest therein; and to that extent her right and title have become vested in her devisee, the complainant in this case. But in the allowance of her whole share of the estate, as a credit upon the purchase made by her husband, it is quite evident that it was the intention of all the parties that such one-sixth interest should be regarded as merged in the purchase. At all events, it does not seem to us to be equitable that a resulting trust should be declared in her husband’s purchases in her favor to the extent of her whole and entire interest in her father’s estate, and yet that she should also have in addition thereto a one-sixth undivided legal interest, which, through accident or inattention, or because it was not deemed important at the time, she failed to relinquish. The resulting trust, therefore, which we find in her favor must be deemed to be subject to the relinquishment on her part of the one-sixth so retained. He who seeks equity must do equity.

Upon the condition that the complainant in this case will execute a proper quit-claim deed to the parties in interest of the said one-sixth undivided part, so far as the same affects the second lot of land purchased by William T. Doniphan, he will be entitled to have a resulting trust declared in his favor as the representative of Mary Ann Doniphan in the first lot of land purchased by said William T. Doniphan, and not otherwise.

The decree of the court below will be reversed, and the cause will be remanded to that court, with directions that, if the complainant in this cause, within such time as the court may prescribe, will execute and deliver a proper deed of con*571veyance of the aforesaid one-sixth interest, as aforesaid, then he shall be decreed as the represe7itative of the aforesaid Mary Ann Do7iipha7i, to be the ow7ter, by virtue of a resulting t7rust, of all the 7'ight, title, interest a7id estate that was vested Í71 the aforesaid Willia7n T. Do7iipha7i in a7td to the first lot aforesaid purchased by hi¡7i; otherwise, the bill of co77iplai7it shall be dis77iissed. And as to the second lot purchased as aforesaid by Willia77i T. Donipha7i, it shall be decreed that said purchase was Í7i his own right, a7id not subject to a7iy resulting t7rust; a7td as to that lot the bill of co77iplai7it shall sta7id dis77iissed. Each party will pay his own costs in this court.

Upon motions to amend the decree heretofore rendered in this case, the court, by Mr. Justice Morris, on April 2t 1894, said: _

Motions have been made both by the appellant and the appellees for amendment of the decree in this cause, and both motions seem to be well grounded. The appellant’s motion has reference to the use .of an alley or private passage-way between the two pieces of property disposed of by the decree; and the motion of the appellees suggests that the appellant should account to the appellees for all the rents received by him from the west part of lot 5, in square 296, from the 23d day of November, 1888, as a preliminary to his having a resulting trust declared upon the other prooerty.

The motion of the appellees is granted. He that seeks equity must do equity; and it would not be equitable to permit the appellant to divest the appellees of their legal title to part of the property without accountability by him to them of the rents which he has received from the other part, against which he should not be allowed to protect himself by the interposition of the statute of limitations.

So far as concerns the alley, it is not quite apparent that we have enough in the record to enable us to decide the rights of.the parties intelligently. And therefore it seems *572to be proper that, in remanding the cause to the Supreme Court of the District of Columbia, it should be without prejudice to the rights of either of the parties in this regard. They will be at liberty to bring their respective claims before that court for adjudication and settlement.

The decree will accordingly be amended in accordance ■with this opinion.

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