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The opinion of the court was delivered by

Smith, J.:

For the error of the court in denying the motion to strike out the irrelevant defenses the judgment should' be reversed. While neither the verdict nor judgment seems to have been based on these alleged defenses, there was evidence offered with reference to them, and the plaintiffs in error were evidently prejudiced thereby. They were entitled to a *584trial on the issues tendered by the petition and cross-petitions, stripped of every irrelevant matter.

The defendant John Sample was allowed to testify, over the objection of plaintiff, to communications had with the deceased while the relation of husband and wife existed between them, and also to testify in his own behalf to transactions had with the deceased personally, the adverse parties being heirs at law of such deceased and having acquired their title to the cause of action immediately from her. It is claimed, however, that the attorney for the adverse parties waived these objections by transcending the bounds of cross-examination and asking the witness about other communications and transactions not referred to in the examination in chief, and this in a measure is true.

However, the following special findings of the jury, regardless of the general verdict, entitle the grandchildren to a judgment of partition as prayed for, viz.:

“(11) Ques. Did Sample, in June, 1892, by general warranty deed, convey the said southwest quarter of section 26 to Maria Sample? Ans. Yes, in trust for John Sample.

“(12) Q. Did he know at that time that some creditor was threatening suit upon a note, and did he expect that such creditor would come onto him for a debt upon which he was surety? A. Yes.

“(13) Q. Did Maria Sample inform the purchaser in the presence of Sample that she owned the said southwest quarter of section 26? A. She informed the purchaser that the deed was in her name.

“(14) Q. Did Thiessen, the purchaser, pay all the purchase-money for said southwest quarter of section 26 to said Maria Sample ? A. Yes.

“(15) Q. Did Maria Sample, on the 26th day of February, 1902, refuse to allow any of the proceeds of the said land, either the notes and mortgage or money, to be placed in the name of John Sample, and was he angry on that account? A. Yes.”

“(18) Q. Was the land in controversy paid for by the money paid to Maria Sample by Thiessen when he purchased said southwest quarter of section 26? A. Yes.”

*585“(21) Q. Did Maria Sample agree to hold the land in controversy in trust for John Sample? A. Yes.

“ (22) Q. If you answer ‘yes,’ when and where was said agreement made? And was it verbal or in writing? A. It was verbal, but no evidence as to time or place.

“(28) Q. If you answer question 21 ‘yes,’ do you find that such agreement was proved by circumstantial evidence? A. Yes.

“ (24) Q. If you answer question 23 ‘yes,’ state upon what circumstances you base same. A. General circumstances.

“ (25) Q. Did Maria Sample have the money in her name in the bank of McPherson, and did she issue and deliver the check in payment for the property in controversy? A. Yes.”

Where land is conveyed or caused to be conveyed by a husband to his wife, he paying the entire consideration out of his own funds, there is no resulting trust presumed in his favor. To establish a resulting trust through a verbal agreement the evidence must be so clear and conclusive as to overcome the evidence of the deed, and such agreement must be made at or before the time of the conveyance.

None of these conditions exists in the case at bar. The land was conveyed to the wife, not by the husband, but by others; not by request, even of the husband, but in consideration of the purchase-price, which was paid by her out of funds received from other lands to which she had the title — her sole right to which funds she had asserted adversely to him, and to which he, after protest, had assented.

The judgment is reversed and the case is remanded, with instructions to render judgment in accordance with the views herein expressed.

All the Justices concurring.

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