majority"> Adams, J.

Upon the application of either party or of its own motion, the court may direct a reference . • . . “where the issues of fact and questions of fact arise in an action of which the courts of equity of the State had exclusive jurisdiction prior to the adoption of the Constitution of one thousand eight hundred and sixty-eight, and in which the matter or amount in dispute is not less than the sum or value of five hundred dollars.” C. S., 513 (5). In this case the court, of its own motion, ordered a reference under this section and appointed a referee. The defendant excepted on the ground that he had filed a plea in bar, which should be heard and determined before the cause was referred. Of course, according to the general rule, a plea in bar must first be determined (D uckworth v. Duckworth, 144 N. C., 620) ; but the preliminary *493 question is whether the defendant’s mere denial of the plaintiff’s cause of action is such a plea as will bar the reference, conceding without deciding that a plea in bar is applicable to actions formerly cognizable only in courts of equity.

The record contains excerpts from the defendant’s affidavit and examination from which it may reasonably be inferred that the defendant took title to the land in the capacity of a trustee for the year 1929. If he did so, the trust relation existed and his limitation of the. terms would not preclude the plaintiff from establishing h'is contention of the agreement. The jurisdiction to enforce the performance of trusts arises where property has been accepted by one person on terms of using or holding it for the benefit of another, and in this State it is not requisite that a declaration of trust be made in writing at the time the legal title is conveyed. Shelton v. Shelton, 58 N. C., 292; Riggs v. Swann, 59 N. C., 118; Lefkowitz v. Silver, 182 N. C., 339.

A plea in bar of a reference is not conclusive unless it extends to the whole cause of action so as to defeat “it absolutely and entirely.” Alley v. Rogers, 170 N. C., 538; Bank v. Evans, 191 N. C., 535; Bank v. McCormick, 192 N. C., 42. If the defendant accepted the title to the property in trust, simple denial of the alleged cause of action would not necessarily operate as a plea in bar, the controversy between the parties as to the duration and terms of the trust not being effective to defeat the plaintiff’s cause of action.

Judgment affirmed.

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