Greaves v. Atkinson
Greaves v. Atkinson
Opinion of the Court
delivered the opinion of the court.
Prior to the adoption of the code of 1857 a resulting trust arose' in favor of the wife when her money was used in the purchase of lands in his own name by the husband, under the same circumstances and to the same extent that such trust would have resulted to any other person supplying the purchase-money. 1 Perry on Trusts, 137, and note; 1 Pomeroy’s Eq. Jur. 422.
When all the facts and circumstances of a purchase from a trustee in a resulting trust are shown, and it thereby appears that a person is a purchaser for value and entitled to protection as such, he may raise the defense by demurrer to a bill exhibited against him to subject the lands to the trust. Story’s Eq. Pl. 603. But when they do not so appear, the defense, being an affirmative one, must be raised by plea or answer. Story’s Eq. Pl. 604 and 605 ; 1 Dan. Chy. Pl. & Pr. 677 to 698.
The facts disclosing the bona fides of the purchases under S. A. D. Greaves do not appear in the bill in this cause, and the demurrer should have been overruled.
Leeree reversed, demumr overruled, and cause remanded.
Reference
- Full Case Name
- S. A. D. Greaves v. Wm. Atkinson
- Cited By
- 5 cases
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- Syllabus
- j. Resulting Trust. Husband and wife. Code 1857, p. 33S. Independently of code 1857 (p. 336) creating a trust in such cases, at common law, a wife could, to the same extent and under the same circumstances as other persons, acquire a resulting trust in land bought by her husband in his name with her money. 2. Bona fide Purchaser. Affirmative defense. Demurrer. In a bill to enforce a resulting trust in land against one who has purchased from the trustee, where the facts of the purchase are shown, and it thereby appears that the defendant is a purchaser for value, he may raise the defense by demurrer. But, where the facts do not so appear, the defense, being affirmative, must be raised by plea or answer.