¶1On Motion for Rehearing.
¶2I dissented from the original disposition of this case. On motion for rehearing I desire to briefly state my views as to the matter. In my opinion the evidence is insufficient to raise the issue of an express, resulting or constructive trust. A trust arises at the very moment the legal title vests in the one sought to be held as trustee. Under appellant’s testimony, if trust there was it was an express trust. Appellee acquired this property in pursuance of a contract. For the cash payment he gave his note to the grantor. If his mother advanced the rather small cash payment the reasonable inference from her testimony is that she voluntarily advanced same and that appellee did not embezzle or convert her money, if her money did make the first payment. This cash payment was only a small part of the consideration; the balance of the consideration was appellee’s promissory notes. Appellant was bound neither to appellee’s grantor nor to appellee to pay same or any part thereof. The contract, as reflected by the testimony of appellant, amounted to nothing more than a contract that appellee would acquire the land and thereafter convey it to appellant.
¶3The evidence is undisputed that appellee in his own name and for his own benefit about 1934 leased this property to a third party. This lease was immediately placed upon record. It is true it only included the oil and gas rights. Appellant admitted that she had notice of the making of this lease about the time same was made. It amounted to a sale of the entire mineral estate in the land. If appellant had any right it purports to convey such right to the lessee. She knew of the lease and she knew that appellee was not accounting to her for any of the delay rentals. This conveyance, in my opinion amounted to a repudiation and denial of any rights of appellant in the land, and his adverse claim thereto. In my opinion, beyond any question the legal effect of the conveyance, taken in connection with appellant’s actual notice thereof, coupled with appellee’s possession of the land as a matter of law set in motion the statute of limitations and if appellant ever had any claim to an interest in this land, barred the assertion thereof.