BeaRD, Chief Justice.
In this case the defendant in error, Lydia H. Elmore, brought the action against the plaintiff in error, Claud K. Cook, to recover the title and possession of certain described real estate, claiming to be the owner thereof and that Cook held the legal title thereto in trust for her, and wrongfully kept her out of the possession of the same. Defendant denied holding the title in trust and claimed to be the absolute owner of the land. A decree was entered in favor of [168]*168plaintiff, and the defendant brings the ease here by proceedings in error.
By stipulation of the attorneys for the respective parties the principal part of the evidence consists of evidence taken in the case of Cook v. Elmore, reported in 25 Wyo. 393, 171 Pac. 261. The additional evidence introduced by plaintiff being evidence showing that since the decision in that case final settlement of the estate of Mike Elmore, deceased, had been made and the remaining property of said estate in Wyoming, including said lands were awarded distributed and decreed to plaintiff, Mrs. Elmore. The additional evidence introduced by defendant being the testimony of a witness who testified that Mike Elmore in his lifetime had stated to him that the land belonged to Cook. Also evidence that Cook had placed improvements on the land after September 5,1911, of the value of $3000.00. The other evidence in the case is sufficiently referred to and the facts stated in the opinion in the former case to present the questions in the present case. The court found the fact to be, in substance, that Cook held the legal title to the land in trust for Mike Elmore up until the time of his death, and thereafter for his successor in interest, Mrs. Elmore. That Cook recognized said trust and never repudiated the same, or made any adverse claim to the land until September 5, 1911. There is not much controversy as to those facts; and the evidence ' is sufficient to sustain such findings. Counsel for plaintiff in error rely, principally, for a reversal of the judgment upon two propositions, viz: 1. That the action is barred by the statute of limitations; and, 2. That the judgment in the former case is res judicata of the rights of Mrs. Elmore, and that she is estopped by that judgment from maintaining the present action.
The first proposition is based upon the contention “that the plaintiff in both cases is endeavoring to recover upon fraud, either actual or constructive, perpetrated by the defendant on Mike Elmore, ’ ’ and therefore comes within the provisions of Section 4300, Comp. St. 1910, which reads: [169]*169"■Within four years * * * * an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." But we do not agree with that contention. It is alleged in the petition in this ease that the deed was erroneously taken in the name of Cook, and there is no allegation that it was so done fraudulently, nor are there any facts alleged which to our minds amounts to an allegation of fraud. It was alleged in the petition in the former case, which is set out in full in the petition in this case, "That the said deed should have been takeil in the name of the said Mike Elmore but was erroneously taken in the name of the defendant.” The following averments appear in the petition in the former action, viz: ‘ ‘ That the said defendant did not disclose to the said Mike Elmore that the deed to said land was taken in the name of the defendant as in good faith and duty he should have done nor did the defendant make, execute and deliver a deed therefor conveying said land to the said Mike Elmore as in good faith and conscience he should have done.” And also: "That the said Mike Elmore did not know that the deed to said land was in the name of the defendant but trusted to the defendant to act in good faith and conscience. ” It is upon those allegations contained in the petition that counsel now claim that the action is one for recovery on the ground of fraud, and that the case comes within the provisions of the section of the statute above quoted. Considering the petition as a whole, we think it clear that it was not intended to allege, nor does it allege, fraud as the cause of action, but bases the action on the fact that Cook is the trustee of a resulting trust and holds the legal title to the land in trust for Mrs. Elmore; that he repudiated the trust September 5,1911; and that she seeks by this action to recover the legal title and possession of the premises from him. The trust established by the evidence in the present ease is strictly a resulting trust. "A resulting trust is a trust arising by implication or construction of law, and presumed to exist from the supposed inten - [170]*170tion of the parties and the nature if the transaction. Such trusts are also called ‘presumptive’ trusts, and are frequently defined in terms of or in connection with the character of the transaction out of which they most frequently arise, namely, where one person pays the consideration for a purchase and the title is taken in the name of another, although they may result from other kinds of transactions. ’ ’ (39 Cyc. 26.) “Constructive trusts do not arise by argument or from intention but by operation of law; and fraud, active or constructive, is their essential element.” (id. 169.1 Counsel for plaintiff in error have argued the case apparently upon the theory that we are dealing with a constructive instead of a resulting trust,- for which reason most of the authorities cited ¿n their brief are not applicable to the case at bar. The case of Kent et al. v. Mahaffey 10 C. St. 204, was a clear case of fraud in the destruction of a will. Combs v. Watson, 32 O. St. 228 was an action to set aside a fraudulent conveyance and subject the property to the payment of debts under a particular statute. (Burling v. Newlands, 112 Cal. 476, 44 Pac. 810), was based on false and fraudulent representations. Counsel also cite Black v. Black, 64 Kans. 689, 68 Pac. 662, but so far as applicable to the facts in this case it is against their contention. We are of the opinion that the statute of limitations applicable to this case in Section 4295, Comp. St. 1910, which is as follows: “An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten years after the cause of such action accrues.” Or, if not within that section, it comes within Section 4303, “An action for relief not hereinbefore provided for, can only be brought within ten years after the cause of action accrues.” We are of the opinion that upon the pleadings and the evidence in the present case it must be regarded as an action for the recovery of the title and possession of land, and therefore does not come within the provisions of Section 4300, above quoted. (Bradley Bros. v. Bradley, 127 Pac. 1044; 20 Cal. app. 1; Union Ice Co. v. Doyle, 6 Cal. [171]*171app. 284, 92 Pac. 112).) It was held that in Cook v. El-more, supra, that the statute did not begin to run against a cestui que trust in possession until the date of his ouster therefrom. In addition to the cases therein cited, see (Zunkel v. Colson et al, 109 Iowa 695, 81 N. W. 175 and Reynolds et al, V. Summer et al, 126 Ill 58, 18 N. E. 334; 1 L. R. A. 327; 9 Am. St. Rep. 523). The date of the ouster in the present ease was September 5,1911, and the action was commenced April 27, 1918. Therefore, the district court correctly held that the action was not barred.
On the second proposition, that the judgment in the former ease is res judicata of the rights of Mrs.
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BeaRD, Chief Justice.
In this case the defendant in error, Lydia H. Elmore, brought the action against the plaintiff in error, Claud K. Cook, to recover the title and possession of certain described real estate, claiming to be the owner thereof and that Cook held the legal title thereto in trust for her, and wrongfully kept her out of the possession of the same. Defendant denied holding the title in trust and claimed to be the absolute owner of the land. A decree was entered in favor of [168]*168plaintiff, and the defendant brings the ease here by proceedings in error.
By stipulation of the attorneys for the respective parties the principal part of the evidence consists of evidence taken in the case of Cook v. Elmore, reported in 25 Wyo. 393, 171 Pac. 261. The additional evidence introduced by plaintiff being evidence showing that since the decision in that case final settlement of the estate of Mike Elmore, deceased, had been made and the remaining property of said estate in Wyoming, including said lands were awarded distributed and decreed to plaintiff, Mrs. Elmore. The additional evidence introduced by defendant being the testimony of a witness who testified that Mike Elmore in his lifetime had stated to him that the land belonged to Cook. Also evidence that Cook had placed improvements on the land after September 5,1911, of the value of $3000.00. The other evidence in the case is sufficiently referred to and the facts stated in the opinion in the former case to present the questions in the present case. The court found the fact to be, in substance, that Cook held the legal title to the land in trust for Mike Elmore up until the time of his death, and thereafter for his successor in interest, Mrs. Elmore. That Cook recognized said trust and never repudiated the same, or made any adverse claim to the land until September 5, 1911. There is not much controversy as to those facts; and the evidence ' is sufficient to sustain such findings. Counsel for plaintiff in error rely, principally, for a reversal of the judgment upon two propositions, viz: 1. That the action is barred by the statute of limitations; and, 2. That the judgment in the former case is res judicata of the rights of Mrs. Elmore, and that she is estopped by that judgment from maintaining the present action.
The first proposition is based upon the contention “that the plaintiff in both cases is endeavoring to recover upon fraud, either actual or constructive, perpetrated by the defendant on Mike Elmore, ’ ’ and therefore comes within the provisions of Section 4300, Comp. St. 1910, which reads: [169]*169"■Within four years * * * * an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." But we do not agree with that contention. It is alleged in the petition in this ease that the deed was erroneously taken in the name of Cook, and there is no allegation that it was so done fraudulently, nor are there any facts alleged which to our minds amounts to an allegation of fraud. It was alleged in the petition in the former case, which is set out in full in the petition in this case, "That the said deed should have been takeil in the name of the said Mike Elmore but was erroneously taken in the name of the defendant.” The following averments appear in the petition in the former action, viz: ‘ ‘ That the said defendant did not disclose to the said Mike Elmore that the deed to said land was taken in the name of the defendant as in good faith and duty he should have done nor did the defendant make, execute and deliver a deed therefor conveying said land to the said Mike Elmore as in good faith and conscience he should have done.” And also: "That the said Mike Elmore did not know that the deed to said land was in the name of the defendant but trusted to the defendant to act in good faith and conscience. ” It is upon those allegations contained in the petition that counsel now claim that the action is one for recovery on the ground of fraud, and that the case comes within the provisions of the section of the statute above quoted. Considering the petition as a whole, we think it clear that it was not intended to allege, nor does it allege, fraud as the cause of action, but bases the action on the fact that Cook is the trustee of a resulting trust and holds the legal title to the land in trust for Mrs. Elmore; that he repudiated the trust September 5,1911; and that she seeks by this action to recover the legal title and possession of the premises from him. The trust established by the evidence in the present ease is strictly a resulting trust. "A resulting trust is a trust arising by implication or construction of law, and presumed to exist from the supposed inten - [170]*170tion of the parties and the nature if the transaction. Such trusts are also called ‘presumptive’ trusts, and are frequently defined in terms of or in connection with the character of the transaction out of which they most frequently arise, namely, where one person pays the consideration for a purchase and the title is taken in the name of another, although they may result from other kinds of transactions. ’ ’ (39 Cyc. 26.) “Constructive trusts do not arise by argument or from intention but by operation of law; and fraud, active or constructive, is their essential element.” (id. 169.1 Counsel for plaintiff in error have argued the case apparently upon the theory that we are dealing with a constructive instead of a resulting trust,- for which reason most of the authorities cited ¿n their brief are not applicable to the case at bar. The case of Kent et al. v. Mahaffey 10 C. St. 204, was a clear case of fraud in the destruction of a will. Combs v. Watson, 32 O. St. 228 was an action to set aside a fraudulent conveyance and subject the property to the payment of debts under a particular statute. (Burling v. Newlands, 112 Cal. 476, 44 Pac. 810), was based on false and fraudulent representations. Counsel also cite Black v. Black, 64 Kans. 689, 68 Pac. 662, but so far as applicable to the facts in this case it is against their contention. We are of the opinion that the statute of limitations applicable to this case in Section 4295, Comp. St. 1910, which is as follows: “An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten years after the cause of such action accrues.” Or, if not within that section, it comes within Section 4303, “An action for relief not hereinbefore provided for, can only be brought within ten years after the cause of action accrues.” We are of the opinion that upon the pleadings and the evidence in the present case it must be regarded as an action for the recovery of the title and possession of land, and therefore does not come within the provisions of Section 4300, above quoted. (Bradley Bros. v. Bradley, 127 Pac. 1044; 20 Cal. app. 1; Union Ice Co. v. Doyle, 6 Cal. [171]*171app. 284, 92 Pac. 112).) It was held that in Cook v. El-more, supra, that the statute did not begin to run against a cestui que trust in possession until the date of his ouster therefrom. In addition to the cases therein cited, see (Zunkel v. Colson et al, 109 Iowa 695, 81 N. W. 175 and Reynolds et al, V. Summer et al, 126 Ill 58, 18 N. E. 334; 1 L. R. A. 327; 9 Am. St. Rep. 523). The date of the ouster in the present ease was September 5,1911, and the action was commenced April 27, 1918. Therefore, the district court correctly held that the action was not barred.
On the second proposition, that the judgment in the former ease is res judicata of the rights of Mrs. Elmore, counsel for plaintiff in error state in their brief that, ‘ ‘ Inasmuch as she could have pleaded the entire facts in the former case and really attempted to do so she is barred from prosecuting the present action, and the plea of res judicata is fully sustained under the pleadings and evidence introduced. ’ ’ A judgment in one case is res judicata in a subse-cant case when the parties to both actions are the same, and for the same cause of action. In such case when the matters in issue in the former case have been decided upon the merits the judgment is a bar to a second suit on the same cause of action and concludes parties and those in privity with them, and also of other matters which the parties might have litigated within the issues as made by the pleadings. That is, a party will not be permitted to split up a single cause of action and make it the basis of several suits. (15 R. C. L. p. 962, et seq.) In this ease the judgment relied upon as a bar was rendered in an action between the executrix of the will and administratrix of the estate of Mike El-more, deceased, and Cook, upon a claim due from Cook to said estate, and which it was the right and duty of the ad-ministratrix to collect and receive. The heirs or devises of Mike Elmore, deceased, could not have maintained tha; action, even if it had been alleged and proven who they Xere. Nor could the executrix or administratrix maintain an action to recover the title. (Cook v. Elmore, supra.) The [172]*172two causes of action are distinct and separate and in favor of different parties. Nor would the same evidence support the present action which was necessary to sustain the former one. Under the statute the administratrix was entitled to the possession of all the real estate of which Mike Elmore died, seized and possessed, pending the settlement of his estate, and all that she was required to prove in the former case against Cook’s defense that he was the absolute owner of the land by virtue of the deed was that she was such executrix or administratrix, that Mike Elmore died seized of the land, and that Cook took and held the legal title in trust for Mike Elmore during his lifetime. In the present case it was necessary to further prove, in order to recover title and possession, that the estate had been settled and that she was the sole devisee under the will and was the owner of the land. In the former case it was not necessary to decide, nor was it decided, who succeeded to the title of Mike El-more, deceased. “When the second action between the same parties is upon a different claim or demand, or cause of action, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined.” (15 R. C. L. p. 973), and cases cited in note. The principle is also established that a former judgment does not have the effect of res judicata unless the second suit is not only between the same parties but between them in the same right or capacity. (15 R. C. L. 1012), and cases there cited. There would be stronger reason in the present case for a holding that the judgment in the former case is res judicata of Cook’s right under the deed than that Mrs. Elmore is estop-ped thereby from maintaining this action. Our conclusion on that point is that the judgment in the former suit is not a bar to the maintenance of the present action. The only other question, briefly discussed in counsel’s brief, is the sufficiency of the evidence to sustain the findings and judgment. We are satisfied that the evidence is sufficient to [173]*173support both, and that the judgment should be, and therefore is, affirmed.
Affirmed.
PotteR and Blydenburgi-i, JJ., concur.