Lounsbury v. Purdy, 18 N. Y. 515; Garfield v. Hatmaker, 15 N. Y. 477; Sayre v. Townsend, 15 Wend. 649; White v. Carpenter, 2 Paige 233. It may be that in cases where an aliquot or some other definite part of the consideration has been advanced, the parties intending that some specific interest shall vest in the person paying it, or in proportion to the sum paid, there might be a resulting trust to that extent. But in this case no such question arises, since the defendant's claim is that she was to have the whole estate in consideration of the sum advanced, and she does not claim that there was any intention to acquire any specific part of the property less than the whole, as a tenant in common with her husband."

Sec. 778. Trusts arising out of fraud. A resulting trust, on account of fraud, cannot be predicated upon the mere refusal of the trustee to execute an oral express trust or his denial of the existence of such trust. Davis v. Stambaugh, 163 Ill. 557 (45 N. E. Rep. 170). If one party obtains the legal title to land by fraud or by violation of a fiduciary relation or in any other unconscientious manner so that he may not equitably retain it, equity will impress a constructive trust upon the property in favor of one who in good conscience is entitled to it. Nester v. Gross, 66 Minn. 371 (69 N. W. Rep. 39); Milner v. Rucker, 112 Ala. 360 (20 So. Rep. 510). When trust funds are invested in land by a trustee, and the title is taken in his own name, an implied trust will be raised in favor of the cestui que trust. If such funds are paid in pursuance of the contract of purchase, it does not matter whether they were paid before, at the time of, or after the purchase. Where a rightful trustee turns over to a wrongful trustee, the trust funds, and afterwards, in exchange for such funds, conveys to such wrongful trustee, in his own name, a tract of land, such land will be deemed to be held in lieu of the trust funds for the benefit of the cestui que trust. Notice of a prior existing trust, received by a subsequent purchaser before the payment of all the purchase money, although it be secured and the conveyance executed, is equivalent to notice before the contract of purchase, in so far as the legal title to the trust subject is concerned. Webb v. Bailey, 41 W. Va. 463 (23 S. E. Rep. 644). In order to establish a resulting trust, ex mal

eficio, the evidence should be clear, explicit and unequivocal. Martin v. Baird, 175 Pa. St. 540 (34 Atl. Rep. 809). Citing, Kistler's Appeal, 73 Pa. St. 393; Kraft v. Smith, 117 Pa. St. 183 (11 Atl. Rep. 370).

Sec. 779.

Particular cases-Sufficiency of proof. A member of a mercantile partnership who, with the consent of his copartner, uses partnership funds for the improvement of his real estate, charging himself with the same in his account with the partnership, is a debtor and not a trustee of the partnership, as to such funds, and the copartner cannot follow the funds and have it declared a lien on the improvements. Lassiter v. Stainback, 119 N. C. 103 (25 S. E. Rep. 726). The Indiana Rev Stat., 1881, § 2969, provides that "no trust concerning lands except such as may arise by implication of law shall be created, unless in writing, signed by the party creating the same." Under this statute it is held that where land is conveyed to one of two co-sureties for indemnity on account of the suretyship, upon the payment of the debt by the sureties, the grantee holds the security in trust for the benefit of himself and co-surety. The deed is in the nature of a mortgage and the trust arises by implication of law. Kelso v. Kelso, 16 Ind. App. 615 (44 N. E. Rep. 1013). To establish by parol evidence, against one who has taken the legal title to lands in his own name by written instrument, a resulting trust in favor of one claiming to have paid the purchase money, it may be shown by evidence outside of such instrument that the purchaser was acting for the claimant, but this fact must be established beyond reasonable controversy by clear, definite, unequivocable and conclusive evidence; admissions to that effect by the alleged trustee will be received with great caution, especially after his death. Chambers v. Emery, 13 Utah 374 (45 Pac. Rep. 192). Proof to establish a resulting trust must be clear and satisfactory and show that the trust results at the instant the title to the property in relation to which the trust is claimed vests in the guarantee. Maroney v. Maroney, 97 Ia. 711 (66 N. W. Rep. 911). Citing, Jones v. Storms, 90 Ia. 269 (57 N. W. Rep. 892); Richardson v. Haney, 76 Ia. 102 (40 N. W. Rep. 115); Koster v. Miller, 149 Ill. 195 (37 N. E. Rep. 46); Van

Buskirk v. Van Buskirk, 148 Ill. 9 (35 N. E. Rep. 381); 1 Perry on Trusts, § 133. For cases which depend upon particular facts illustrating what proof is sufficient to establish a trust, see In re Lau's Estate, 176 Pa. St. 100 (34 Atl. Rep. 969); Graham v. Selbie, 8 S. Dak. 604 (67 N. W. Rep. 821); Jones v. Hughey, 46 S. C. 193 (24 S. E. Rep. 178); Riggan's Adm’r v. Riggan, 93 Va. 78 (24 S. E. Rep. 920).

RIGHT OF WAY.

EPITOME OF CASES.

Sec. 780. Grants of right of way-Construction of same. A grant of a franchise by a city to a company for the construction of a street railway through certain streets which contains a covenant that all streets through which the tracks of the company are laid shall be maintained in first-class order between the tracks and two feet on each side thereof, does not impose on the company the additional duty of elevating the entire surface of the street on either side of its track to the height of its road bed. State v. New Orleans Traction Co., 48 La. 567 (19 So. Rep. 565). The private grants of a right of way to a railroad conveys the easement subject to existing inchoate interests and liens. Farraw v. Nashville, C. &.St. L. Ry. Co., 109 Ala. 418 (20 So. Rep. 303). An ordinance granting a railroad company the right to enter upon and construct a track through a public street does not operate to justify wrongful acts of such company as trespassers prior to the passage of such ordinance. Southern Cal. Ry. Co. v. Southern Pac. R. Co., Cal. (43 Pac. Rep. 1123). Where the consideration for the grant of a right of way is the construction by the railroad of a transfer track for the special use of the landowner, neither the company nor its successor will be permitted to remove such transfer track or materially change the use to which it is put without the consent of the landowner. The necessities of a railroad which arise subsequent to its construction, cannot be urged as a reason for permitting it to violate

a contract by which it originally obtained its right of way. Wysor v. Lake Erie & W. R. Co., 143 Ind. 6 (42 N. E. Rep. 353). Where the right of way is granted upon a condition it is not in the power of the railroad company to avoid the performance of the condition by a subsequent condemnation of a portion of the land included in the grant. In such cases the rescission of the contract must be in toto if at all. Semple v. Cleveland & P. R. Co., 172 Pa. St. 369 (33 Atl. Rep. 564).

Sec. 781.

Condemnation proceedings - Practice. The right of eminent domain cannot be exercised by a railroad corporation with respect to a right of way, when it is already the absolute owner of the land included therein; and condemnation proceedings, had under such circumstances, are ineffective against a mortgage lien placed thereon by a former owner. Chicago, K. & W. Ry. Co. v. Need, 2 Kan. App. 492 (43 Pac. Rep. 997). Article 9, Ch. 23, Comp. Laws 1885, authorizing real estate to be appropriated for the use of the railroad companies for right of way, does not contravene the provisions of § 4, art. 12, of the constitution of Kansas. Chicago, K. & W. R. Co. v. Selders, 4 Kan. App. 497 (41 Pac. Rep. 1012). Iowa Code, Tit. 10, Ch. 4, § 1244, construed and applied as to what is sufficient to give commissioners jurisdiction to assess damages. Carlile v. Des Moines & K. C. Ry. Co., 99 Ia. 345 (68 N. W. Rep. 784). In proceedings to condemn a right of way by a railroad company, it has the right to amend the instrument of appropriation by putting therein the stipulation or agreement to construct proper and sufficient drainage under the road bed, and such stipulations are obligations running with the land and should be taken into consideration in determining the damages. Indiana, I.

I. Ry. Co. v. Rinehart, 14 Ind. App. 588 (43 N. E. Rep. 238). The condemnation of a right of way for a railroad company, and the appraisement of the land appropriated for railroad purposes, and the assessment of damages to the residue of the tract of land from which it is taken, and the money deposited in the county treasury in accordance with the report of the commissioners, represent the whole right of way and interest of every person concerned in the land; and the money, when deposited with the county treasurer, becomes,

in law, the property of the party entitled to it, and is subject to disposal by a court having jurisdiction to determine the rightful owner thereto. Chicago, K. & W. R. Co. v. Selders, 4 Kan. App. 497 (44 Pac. Rep. 1012).

Sec. 782. Condemnation proceedings — Notice. Under the Missouri statute it is held that the notice of the filing of the report of the commissioners need not be personally served upon the land owner nor need it contain the facts found by the commissioners. Leavenworth Ter. Ry. & B. Co. v. Atchison, 137 Mo. 218 (37 S. W. Rep. 913). Condemnation proceedings under the statutes are essentially proceedings in rem, and when commissioners have been duly appointed and qualified, and given notice by publication that they will proceed, at a given time and place, to commence the condemnation of a right of way for a railroad company through the county, it is the duty of all persons owning prop. erty that is liable to be affected by such appropriation to take notice of all future proceedings, and thereby protect their rights. Chicago, K. & W. R. Co. v. Selders, 4 Kan. App. 497 (44 Pac. Rep. 1012).

Sec. 783. Condemnation proceedings-Waiver of rights by land owner. The land owner may waive his right to have his damages assessed by a jury by his failure to demand a jury or to except to the report of the commissioners within the time fixed by the statute. Leavenworth Ter. & B. Co. v. Atchison, 137 Mo. 218 (37 S. W. Rep. 913). Where condemnation proceedings have been conducted in strict conformity with the requirements of the law, and compensation for the land appropriated as right of way has been secured by the deposit of money with the county treasurer of the county where the land is situated, and the owner of the land fails to appeal or take any legal action in the matter until the completion and operation of the railroad, she is then estopped from maintaining an action in ejectment to evict the railroad company from the right thus acquired. Chicago, K. & W. R. Co. v. Selders, 4 Kan. App. 497 (44 Pac. Rep. 1012).

Sec. 784. Abandonment or waiver by railroad-Relocation of line. In Pennsylvania it is held that where a