Mr. Justice Magruder
delivered the opinion of the Court:
About May 15, 1848, Jesse Van Buskirk became the holder, by assignment to himself, of a military land warrant, under which he located and entered on that day 160 acres of land in his own name; and a patent was issued to him on September 1, 1849. The tract of 160 acres lay east of 320 acres then owned by himself and his brother, Thomas Van Buskirk. He owned the north half of the 320 acres and his brother, Thomas, the south half thereof. The present bill seeks to establish a resulting trust in the south 80 acres of the 160 acres, entered on May 15, 1848, in favor of Thomas Van Buskirk. It is claimed by the appellee, that, although the legal title to the 160 acres was taken in the name of Jesse and was in him at the time of his death, the consideration for the purchase of the south half thereof was paid by Thomas.
Where one of two parties, who are strangers to each other, takes the title to a piece of land, but the other advances the purchase money, a resulting trust will exist in favor of the latter, and the holder of the legal title will be regarded as the trustee of the party furnishing the money. (Mahoney v. Mahoney, 65 Ill. 406). Where two persons together advance the price, and title is taken in the name of one of them, a trust results in favor of the other to such proportion of the property as is. equal to the proportion of the consideration contributed by him. (Smith v. Smith, 85 Ill. 189; McNamara v. Garrity, 106 id. 384; Springer v. Springer, 114 id. 551). The sums severally contributed must be for distinct interests or aliquot parts of the estate. (Reed v. Reed, 135 Ill. 482; Stephenson v. McClintock, 141 id. 604). Where two contribute funds and the proportions do not appear, the presumption is that the proportions are equal. (1 Perry on Trusts, sec. 132). The trust must arise, if at all at the time of the execution of the conveyance, and when the legal title vests in the grantee. (1 Perry on Trusts, sec. 133; Reed v. Reed, supra; Stephenson v. McClintock, supra). Such a resulting trust does not spring from the contract or agreement of the parties, hut from their acts. It is not created by contract, but by implication of law apart from contract. (1 Perry on Trusts, sec. 134; Donlin v. Bradley, 119 Ill. 412; Sheldon v. Handing, 44 id. 68; Stephenson v. Thompson, 13 id. 186; Bruce v. Roney, 18 id. 67; Perry v. McHenry, 13 id. 227; Lear v. Chouteau, 23 id. 39). When the two facts, to-wit: payment of the purchase money by one, and conveyance of the title thereby purchased to another, are found to exist, then the law so construes those two-facts as to make them constitute a resulting trust, and, for this reason, such a trust is said to arise by operation of law. (Smith v. Smith, supra; Donlin v. Bradley, supra). The beneficial estate follows the consideration, and attaches to the party from whom the consideration comes. (2 Pom. Eq. Jur sec. 1037). Since the whole foundation of resulting trusts of this class is the ownership and payment of the purchase money by one when the title is taken in the name of another, it follows that such trusts may be established by parol evidence. (1 Perry on Trusts, sec. 137; 2 Pom. Eq. Jur. sec. 1040; Donlin v. Bradley, supra). Indeed, our statute of frauds expressly provides that “resulting trusts or trusts created by construction, implication or operation of law need not be in writing, and the same may be proved by parol.” (Rev. Stat. chap. 59, sec. 9; 1 Starr & Cur. Ann. Stat. page 1200).
The material circumstance to be shown by such parol evidence is the source of the consideration paid for the land. The burden of proof is upon the party seeking to establish the trust, and he must prove that the alleged cestui que trust paid the purchase price. (10 Am. & Eng. Enc. of Law, page 29, and cases cited in notes). Such evidence must be “clear,. strong, unequivocal, unmistakable,” and must establish the fact of the payment by the alleged beneficiary beyond a doubt. (2 Pom. Eq. Jur. sec. 1040; Green v. Dietrich, 114 Ill. 636; Heneke v. Floring, 114 id. 554; Mahoney v. Mahoney, supra). The admissions of the nominal purchaser and grantee in the deed are held to be 'competent evidence upon this subject. (1 Perry on Trusts, sec. 137). Such admissions, however, are ,to„be received with great caution, and are frequently entitled to little weight. (Corder v. Corder, 124 Ill. 229; 10 Am. & Eng. Enc. of Law, page 30, and eases cited in notes).
We think, however, that there is a clear distinction between proof of the declarations of the grantee to the effect that he holds the title for another, or has ¿greed to convey to another, and his declarations or admissions to the effect that another person’s money was paid for the land. Declarations of the latter class are entitled to more weight than those of the former class, especially when they are corroborated by circumstances, and attended by proof of some previous arrangement under which the money was advanced. (10 Am. & Eng. Enc. of Law, page 30; 1 Perry on Trusts, sec. 137). The admission of a trustee, that he purchased certain property with the trust fund, is competent evidence to raise a resulting trust for the cestui que trust in that property. (1 Perry on Trusts, sec. 137, note 1 on page 156, referring to Harrisburg Bank v. Tyler, 3 Watts & S. 373). In Ryder v. Emrich, 104 Ill. 470, it was held that the admissions of the grantee in the deed on repeated occasions and to different persons, that the money of the cestuis que trust was paid for the land, were “entirely sufficient to clearly establish that fact.” In Stephenson v. McClintock, supra, it was held, that although the verbal declarations of a party are not competent evidence to prove a contract to give another an interest in land held by him, they are competent, in connection with other evidence, to prove that he purchased the land with money in part belonging to such other person, and the-extent of that part. The death' of the nominal purchaser does not affect the admissibility of such parol testimony, whatever effect it may have on its weight. (1 Perry on Trusts, sec. 138; Ryder v. Emrich, supra).
About 1845, Jesse and Thomas Van Buskirk settled upon the N. E. i See. 15, entered in 1846 in Jesse’s name, and the S. E. \ Sec. 15, entered in 1846 in Thomas’ name. They are described as having lived together upon this tract in a dugout, or shanty, until some time in 1849 or 1850, when a house was built upon the N. E. Sec. 15. They lived in this house together until February 13, 1851, when Jesse was married. Thomas still continued to live with Jesse and his wife until they went to California in 1852, where they remained three years. During their absence Thomas lived in the house upon Jesse’s north 160 acres with renters or tenants who also occupied it; and, while Jesse was away, looked after the latter’s interests and attended to the farming business. After his brother’s return Thomas continued to live with him until sometime in 1857, when he married, and built a house upon the S.E. Sec. 15, where he has ever since lived with his family.
Complainant examined twelve witnesses. Most of these witnesses are old men, over seventy years of age. They testify to conversations and transactions occurring many years before the date of their testimony, but their recollection of these earlier events appears to be clear and distinct. It would be unprofitable, nor is it necessary, to discuss and analyze their evidence in all its details.
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Mr. Justice Magruder
delivered the opinion of the Court:
About May 15, 1848, Jesse Van Buskirk became the holder, by assignment to himself, of a military land warrant, under which he located and entered on that day 160 acres of land in his own name; and a patent was issued to him on September 1, 1849. The tract of 160 acres lay east of 320 acres then owned by himself and his brother, Thomas Van Buskirk. He owned the north half of the 320 acres and his brother, Thomas, the south half thereof. The present bill seeks to establish a resulting trust in the south 80 acres of the 160 acres, entered on May 15, 1848, in favor of Thomas Van Buskirk. It is claimed by the appellee, that, although the legal title to the 160 acres was taken in the name of Jesse and was in him at the time of his death, the consideration for the purchase of the south half thereof was paid by Thomas.
Where one of two parties, who are strangers to each other, takes the title to a piece of land, but the other advances the purchase money, a resulting trust will exist in favor of the latter, and the holder of the legal title will be regarded as the trustee of the party furnishing the money. (Mahoney v. Mahoney, 65 Ill. 406). Where two persons together advance the price, and title is taken in the name of one of them, a trust results in favor of the other to such proportion of the property as is. equal to the proportion of the consideration contributed by him. (Smith v. Smith, 85 Ill. 189; McNamara v. Garrity, 106 id. 384; Springer v. Springer, 114 id. 551). The sums severally contributed must be for distinct interests or aliquot parts of the estate. (Reed v. Reed, 135 Ill. 482; Stephenson v. McClintock, 141 id. 604). Where two contribute funds and the proportions do not appear, the presumption is that the proportions are equal. (1 Perry on Trusts, sec. 132). The trust must arise, if at all at the time of the execution of the conveyance, and when the legal title vests in the grantee. (1 Perry on Trusts, sec. 133; Reed v. Reed, supra; Stephenson v. McClintock, supra). Such a resulting trust does not spring from the contract or agreement of the parties, hut from their acts. It is not created by contract, but by implication of law apart from contract. (1 Perry on Trusts, sec. 134; Donlin v. Bradley, 119 Ill. 412; Sheldon v. Handing, 44 id. 68; Stephenson v. Thompson, 13 id. 186; Bruce v. Roney, 18 id. 67; Perry v. McHenry, 13 id. 227; Lear v. Chouteau, 23 id. 39). When the two facts, to-wit: payment of the purchase money by one, and conveyance of the title thereby purchased to another, are found to exist, then the law so construes those two-facts as to make them constitute a resulting trust, and, for this reason, such a trust is said to arise by operation of law. (Smith v. Smith, supra; Donlin v. Bradley, supra). The beneficial estate follows the consideration, and attaches to the party from whom the consideration comes. (2 Pom. Eq. Jur sec. 1037). Since the whole foundation of resulting trusts of this class is the ownership and payment of the purchase money by one when the title is taken in the name of another, it follows that such trusts may be established by parol evidence. (1 Perry on Trusts, sec. 137; 2 Pom. Eq. Jur. sec. 1040; Donlin v. Bradley, supra). Indeed, our statute of frauds expressly provides that “resulting trusts or trusts created by construction, implication or operation of law need not be in writing, and the same may be proved by parol.” (Rev. Stat. chap. 59, sec. 9; 1 Starr & Cur. Ann. Stat. page 1200).
The material circumstance to be shown by such parol evidence is the source of the consideration paid for the land. The burden of proof is upon the party seeking to establish the trust, and he must prove that the alleged cestui que trust paid the purchase price. (10 Am. & Eng. Enc. of Law, page 29, and cases cited in notes). Such evidence must be “clear,. strong, unequivocal, unmistakable,” and must establish the fact of the payment by the alleged beneficiary beyond a doubt. (2 Pom. Eq. Jur. sec. 1040; Green v. Dietrich, 114 Ill. 636; Heneke v. Floring, 114 id. 554; Mahoney v. Mahoney, supra). The admissions of the nominal purchaser and grantee in the deed are held to be 'competent evidence upon this subject. (1 Perry on Trusts, sec. 137). Such admissions, however, are ,to„be received with great caution, and are frequently entitled to little weight. (Corder v. Corder, 124 Ill. 229; 10 Am. & Eng. Enc. of Law, page 30, and eases cited in notes).
We think, however, that there is a clear distinction between proof of the declarations of the grantee to the effect that he holds the title for another, or has ¿greed to convey to another, and his declarations or admissions to the effect that another person’s money was paid for the land. Declarations of the latter class are entitled to more weight than those of the former class, especially when they are corroborated by circumstances, and attended by proof of some previous arrangement under which the money was advanced. (10 Am. & Eng. Enc. of Law, page 30; 1 Perry on Trusts, sec. 137). The admission of a trustee, that he purchased certain property with the trust fund, is competent evidence to raise a resulting trust for the cestui que trust in that property. (1 Perry on Trusts, sec. 137, note 1 on page 156, referring to Harrisburg Bank v. Tyler, 3 Watts & S. 373). In Ryder v. Emrich, 104 Ill. 470, it was held that the admissions of the grantee in the deed on repeated occasions and to different persons, that the money of the cestuis que trust was paid for the land, were “entirely sufficient to clearly establish that fact.” In Stephenson v. McClintock, supra, it was held, that although the verbal declarations of a party are not competent evidence to prove a contract to give another an interest in land held by him, they are competent, in connection with other evidence, to prove that he purchased the land with money in part belonging to such other person, and the-extent of that part. The death' of the nominal purchaser does not affect the admissibility of such parol testimony, whatever effect it may have on its weight. (1 Perry on Trusts, sec. 138; Ryder v. Emrich, supra).
About 1845, Jesse and Thomas Van Buskirk settled upon the N. E. i See. 15, entered in 1846 in Jesse’s name, and the S. E. \ Sec. 15, entered in 1846 in Thomas’ name. They are described as having lived together upon this tract in a dugout, or shanty, until some time in 1849 or 1850, when a house was built upon the N. E. Sec. 15. They lived in this house together until February 13, 1851, when Jesse was married. Thomas still continued to live with Jesse and his wife until they went to California in 1852, where they remained three years. During their absence Thomas lived in the house upon Jesse’s north 160 acres with renters or tenants who also occupied it; and, while Jesse was away, looked after the latter’s interests and attended to the farming business. After his brother’s return Thomas continued to live with him until sometime in 1857, when he married, and built a house upon the S.E. Sec. 15, where he has ever since lived with his family.
Complainant examined twelve witnesses. Most of these witnesses are old men, over seventy years of age. They testify to conversations and transactions occurring many years before the date of their testimony, but their recollection of these earlier events appears to be clear and distinct. It would be unprofitable, nor is it necessary, to discuss and analyze their evidence in all its details. Their testimony satisfies us, that the two brothers, Thomas and Jesse, were partners-in the ownership of their personal property, consisting mainly of cattle and horses from 1845 to about 1857, and that the 160 acres in section 14, which was entered by Jesse in May, 1848, was purchased by him with funds earned in their partnership business, if not with actual partnership funds. The fact of the partnership, and the fact of the purchase of the 160 acres with money earned in the carrying on of the partnership business, are proven by the repeated admissions of Jesse, and by the acts and conduct of the parties. They lived together as single men; they had their horses and cattle together, and fed them with hay, grain and straw belonging to both of them. They held themselves out as partners, and persons dealing with them regarded them as such. They had an auction sale of horses and sold them together as joint property. They sold hay, meat and wood in 1846 as being their partnership property. They bought supplies and permitted themselves to be charged as partners. Each, and one as well as the other, paid for articles purchased by them and for labor performed for them. As between partners themselves, the partnership may be shown by “their conduct, the mode in which they have dealt with each other, and the mode in which each has, with the knowledge of the other, dealt with other people.” (1 Lindley on Part. marg. page 84). In Bowen v. Rutherford, 60 Ill. 41, we said: “Whether persons are partners inter se or quoad third parties, must be established by facts; by the acts of the party, or by circumstantial evidence, which induce the belief of a partnership.” There is no evidence that these brothers had any other money than that which was thus earned in the prosecution of their joint business of operating a stock farm. It has been held, that even such circumstantial evidence, as that the means of the nominal purchaser were so limited that it was impossible for him to pay the purchase money, is admissible for the purpose of showing, in connection with other evidence, the payment of the purchase money by the party seeking to establish the resulting trust. (1 Perry on Trusts, sec. 137, and cases cited in note 3 on page 155). Where two brothers live together, and work together for the common store, and agree to have an equal interest in their mutual labors and the property thereby purchased, one brother in paying money, derived from the proceeds of their joint property and mutual labors, for the purchase of land, will be regarded as the agent and trustee of the other. (Stephenson v. McClintock, supra; King v. Hamilton, 16 Ill. 190).
In connection with these acts and circumstances showing the existence of the partnership, are the admissions of Jesse made to nearly a dozen witnesses, sometimes in the presence of his brother, sometimes in his absence, that the 160 acres was bought with money earned in their common business and. by their joint labors. The declarations and admissions thus made are not overcome by the evidence introduced by the defendants below. (Ryder v. Emrich 104 Ill. 470).
It is claimed, that the effect of the evidence showing a purchase with partnership funds is to give each of the brothers title to an undivided one half of the one hundred and sixty acres, and that, as the present bill is not for a partition of the 160 acres, but to establish a resulting trust in the south half thereof, the decree below is erroneous as resting upon a parol agreement to convey the south half, which is in violation of the statute of frauds. There is much force in this position. (Smith v. Smith, supra; Reynolds v. Sumner, 126 Ill. 58). A somewhat similar question was presented in McNamara v. Garrity, 106 Ill. 384, where “Garrity was to pay one fourth of the purchase money and McNamara was to pay the other three fourths thereof, and one fourth of the land, in a ten acre strip off the west side thereof, was to belong to Garrity_ and the balance was to belong to McNamara.” It was there held, that there was a resulting trust in favor of Garrity as to his part of the tract, and that the statute of frauds had no application. It appears, that in that casé Garrity paid his one fourth of the price and, with the consent of McNamara to whom the legal title had been conveyed, took possession of his ten acres, fenced and cleared it, and was in the actual possession of it for more than twenty years. Here, the evidence shows, that Jesse Van Buskirlr took possession of the north 80 acres. Between 1865 and 1879, it is shown that the south 80 acre tract was broken, that Thomas and his family cultivated parts of it for several years, and that a lease of it was made by Thomas for three years with Jesse’s consent to a tenant who cultivated it during that time. We do not deem it necessary, however, to hold that there was a parol partition between the two brothers. Such a partition must be followed by a possession in conformity therewith, so as to authorize one of the co-tenants to file a bill against the other for a conveyance of the legal title according to the terms of the partition. (Tomlin v. Hilyard, 43 Ill. 300; Shepard v. Rinks, 78 id. 188; Sontag v. Bigelow, 142 id. 143). Whether the possession, taken by each of the brothers of the two several tracts, was such an exclusive possession as to amount to a parol partition, (17 Am. & Eng. Enc. of Law, page 668 and cases cited in notes), or not, we think the evidence warrants the conclusion, that Thomas contributed his one half of the purchase money towards the purchase of the south 80 acres. It is proven, that the price, at which the latter tract was entered, was $1.25 per acre, or $200.00 for the whole. The land warrant was what was known as a Mexican land warrant. The Act of Congress of February 11, 1847, (U. S. Stat. at Large, vol. 9, page 125), under which it was issued, entitled the soldier to receive a warrant for 160 acres to be located “in one body.” This was probably the reason why one entry was made for the 160 acres, instead of two entries each for 80 acres. Although the $200.00 was earned by their joint efforts, yet the arrangement was that the $100.00 belonging to Thomas should be applied to the purchase of the south 80 acres, and the other $100.00 belonging to Jesse should be applied to the purchase of the north 80 acres. Hence, under the reasoning in the McNamara case, a resulting trust arose in behalf of Thomas in the south 80 acres, and not in the undivided one half of the 160 acres. The case presented is not that of a parol agreement to divide land, but of a contribution of the one half of a specific fund to buy a particular part of a certain tract.
It is further claimed, that .the appellee has been guilty of such laches that he is not entitled to relief. Undoubtedly resulting trusts may be barred by lapse of time, or laches on the part of the supposed cestui que trust. But no certain time can be fixed within which the application for the enforcement of the trust should be made. What lapse of time will operate as a bar must necessarily be determined by the equitable discretion of the court, and will depend upon the nature and circumstances of each case. Lapse of time will not ordinarily be regarded as a bar, where there has been no adverse possession of the property by the nominal purchaser, and where he has not repudiated or disavowed the trust but has admitted it, and where an excuse for, or explanation of, the delay is furnished by the circumstances of the case or the relations of the parties. (1 Perry on Trusts, sections 141, 228, 229; Harris v. McIntyre, 118 Ill. 275; Reynolds v. Sumner, 126 id. 58; Ryder v. Emrich, 104 id. 470; McDonald v. Stow, 109 id. 40). Thomas Yau Buskirk lived in the most intimate business and family relations with his brother, Jesse, from 1848 to 1857, they occupying the same house and laboring for and with each other. After Thomas began to live in his own house in 1857, his brother’s farm adjoined his own, their houses were not more than a mile apart, they saw each other almost every day, were on the most friendly terms, and aided each other in the cultivation of their respective farms, and in the gathering and sale of the products thereof. During all this time, whenever the subject was alluded to, Jesse admitted that the south 80 acres belonged to his brother, and promised to deed it to him, and gave excuses for not doing so. There is no reliable evidence, that Jesse ever took or held possession of any part of the south 80 acres during his life time. As early as 1865 according to some of the witnesses, certainly from and after 1870, the mind of Thomas began to fail, so that he was incapacitated from attending to business, and was unable properly to assert his own rights. Finally on May 16, 1878, he was declared a lunatic by the county court of Carroll County, and has been a lunatic ever since. No conservator seems to have been appointed for his estate, but this suit has been brought for him by a next friend. (Speck v. Pullman Palace Car Co. 121 Ill. 33). His rights cannot be prejudiced by the fact, that such next friend did not bring the suit immediately after the declaration of lunacy, or immediately after the death of Jesse Van Buskirk, which occurred on June 3, 1879. A lunatic cannot be held accountable for any apparent negligence, laches or delay in seeking redress through the courts, or otherwise, for any wrong that may have been done him with respect to his property, and he is not affected by statutes of limitation which, but for the lunacy, would bar his rights. (Dodge v. Cole, 97 Ill. 338).
After the. Court below found that a resulting trust existed in favor of the complainant, and that the legal title was held in trust for him, and that he was entitled to a deed of the land, it was referred to a master in chancery to take an account of the rents and profits of said 80 acres from the time of the death of said J esse to the date, of the accounting. The master reported that the fair annual cash rental value of the premises was a certain sum per acre,’ and upon the basis of this finding it was decreed that the widow pay $2520.00 and the adopted son $1400.00.
We think that this portion of the decree is erroneous. It is equivalent to compelling the defendants to pay what might have been received from the property by the exercise of reasonable care and prudence. Such is the basis of accounting where the trustee has been guilty of fraud, or misconduct,'or willful default. But where a trustee has acted in good faith, a court of equity will only hold him accountable for what he has actually received, and will not charge him with proceeds or profits which he might have received. (2 Pom. Eq. Jur. sec. 1058 and note; Barnes v. Taylor, 30 N. J. Eq. 7; Greenwood's Appeal, 92 Penn. St. 181; Hill on Trustees, (Bispham) marg. page 523). There is no evidence that the defendants were in any way at fault, or that they had any notice or knowledge that the property was held in trust by the deceased grantee in the patent. As the legal title was in the deceased at the time of his death, it does not appear that the defendants did not in good faith regard themselves as owners of the property by inheritance or descent. Hence, they should only have been required to account for the rents and profits actually received by them during the period named, less taxes paid by them, and necessary repairs made by them.
The decree is affirmed in so far as it requires the legal title to the land to be conveyed to the complainant, but reversed as to the amounts decreed to be paid upon the accounting, and the cause is remanded to the Circuit Court with directions to order an accounting to be stated upon the basis herein indicated.
Decree affirmed in part and m part reversed.