The rule is well settled that, when land is purchased, for which one party pays the consideration and another parly takes the title, a resulting trust immediately arises in favor of the party paying the consideration, and the other party becomes his trustee; and it is now equally well settled that, if the one party pays only a part of the consideration, the party taking the title to the whole land becomes a trustee for the other party, pro tanto. The party setting up the trust, must show that the money was paid by him, at or before the execution of the conveyance. (Bottsford v. Burr, 2 John. Ch. 405; Hidden v. Jordan, 21 Cal. 92; Millard v. Hathaway, 27 Cal. 119; Currey v. Allen, 34 Cal. 254; 2 Story Eq. Sec. 1201; Will. Eq. 600.)
It was found in this case that the owner of the lands in controversy sold the same to the plaintiff and defendant; that each of them paid the vendor one half of the purchase money, and that, thereupon, the vendor executed a conveyance of the lands to the defendant. These facts bring the case within the rules above stated; and the defendant was properly adjudged to be the trustee of the plaintiff as to the undivided one half of the lands, unless he can successfully attack the findings.
The evidence leaves no room for doubt that each party paid one half of the purchase money, and that the defendant took the title to the whole lands. The evidence is conflicting as to whether the purchase was effected for both the plaintiff and defendant, and, therefore, the finding upon that point cannot be disturbed. It might be very difficult to sustain the finding, upon the evidence, as to the time when the plaintiff paid his half of the purchase money—at least, any *194portion of it, except the sum of $500—but, as the defendant has not specified as one of the grounds of his motion for a new trial, that the evidence was insufficient to justify the finding as to the time when the money was paid, the fact that it was paid at the time stated in the finding cannot be drawn in question on appeal.
The defendant’s affidavit does not make a sufficient showing to entitle him to a new trial.
The fact that the plaintiff, in his testimony, gave a statement about the purchase and the purchase money, differing from that of the defendant; or that the Court gave the greater credit to the statement of the plaintiff; or that the defendant, relying upon his own knowledge or recollection of the transaction, neglected to corroborate his own testimony; or that a certain witness testified differently from what the defendant expected, but without having intimated to the defendant what his evidence would be; does not, nor do all these facts combined, amount to legal surprise. The defendant knew that the plaintiff could not sustain the issue on his part, without the production of evidence of the character alluded to; and it was his fault or misfortune that he neglected or was unable to adduce sufficient rebutting evidence to overcome that of the plaintiff.
In respect to the newly discovered evidence, the affidavit is insufficient for this, among other reasons : The defendant has not shown sufficient excuse for his failure to obtain the affidavits of the witnesses mentioned; nor does he set out the memoranda by which he expects to convince one of his witnesses that he was mistaken in his testimony. (Arnold v. Skaggs, 35 Cal. 684; Jenny Lind Co. v. Bower, 11 Cal. 195; Taylor v. Cal. Stage Co. 6 Cal. 228; Rogers v. Huie, 1 Cal. 429.)
Judgment and order affirmed.