In the original bill it was averred that complainant owixed by purchase a one-half undivided interest in the 40 acres here sought to be sold for division, and the cross-bill sought to have the title thus acquired declared as held in trust for the respondents; the effect of the decree of the court below being to award this relief. This is the only qxxestion here presented for consideration.
Wc will briefly state the conclusions which we have x’eached from a study of the evidence, without entering into a discussion thereof. The father of complainant, with his family, at the time of his death in June, 1883, resided upon 120 acres -of land, ad*516joining the40acres herein controversy. He had' contracted with one Duckett for the purchase of this 40 acres, but we are of the opinion he had paid no part of the purchase money; nor had he been placed in possession, and so far as this record discloses the contract was verbal. He was in bad health, and unable to do much .work. There is evidence tending to show that he told complainant that if he would stay there and work and pay for the place he might have it. There were twelve children, complainant being the oldest — 23 or 24 years of age — all the others being minors, with the possible exception of one girl who, the testimony shows, was “about 21 yéars old.” Complainant and his mother, Martha Fowler, after the father’s death, assumed the management of the farm. In October, 1883, a deed to this 40-aere tract was executed by Duckett, and was made to John A. Fowler [complainant] and his mother, Martha Fowler. He continued to reside with his mother upon the home place for a period of 2 years after the execution of this deed, when he married and moved on this 40-acre tract, where he continued to reside for a period of 12 years, at the end of which time he moved across the county line, about a half mile therefrom, but has continued to cultivate the land. The mother died some 6 years previous to the filing of this bill.
[1] It is very uncertain as to when the purchase money was paid, but ,we are inclined to the view that the major portion of it must have been paid subsequent to the execution of the deed. It was paid out of the income from the home place. The presumption arises from the conveyance offered in evidence that it fully speaks the truth, and this presumption must prevail until the contrary is established beyond reasonable controversy. The burden of removing such presumption rested upon the cross-complainants. Lehman v. Lewis, 62 Ala. 129.
[2,3] To establish a resulting trust the cross-complainants must show, not only that the consideration moved from them, but that it was paid contemporaneous with the purchase. Preston v. McMillan, 58 Ala. 84; 3. Pom. Eq. Jur. § 1037.
It must be recalled that if a resulting trust could be enforced against the com-, plainant here, it could also have been enforced against complainant and his mother during her lifetime. As the widow, Martha Fowler, had the right to continue to occupy the homestead until the assignment of her dower interest, or until the homestead was set apart as exempt, she had the right to manage and control the same. The complainant had reached manhood’s estqte, and was free to labor for himself; while the widow was entitled to the services of the minor children, the cross-complainants here. They were maintained at the homestead, and the mere fact they assisted in the farm work by no means gave them title to all the proceeds of that produced. Not only does the proof fail to show that the purchase money was paid by the cross-complainants as a part of the original transaction, but it likewise fails to show that cross-complainants in fact paid any portion of the purchase price. It needs no discussion therefore to demonstrate that cross-complainants have wholly failed to make out a case of resulting trust.
[4] Counsel for appellees, however, appear to insist that the proof is sufficient to disclose a constructive trust growing out of the relationship of the parties — citing Lacey v. Pearce, 191 Ala. 258, 68 South. 46; Waller v. Jones, 107 Ala. 331, 18 South. 277. Such a trust arises when the legal title to property is obtained by one in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficiary’s rights of ownership. Such trusts are often termed trusts in invitum. 3 Pom. Eq. Jur. § 1044; Haney v. Legg, 129 Ala. 619, 30 South. 34, 87 Am. St. Rep. 81. The father is not shown to have had any estate, either legal or equitable, in this land, and therefore his heirs acquired no interest therein by descent, so far as the record discloses; at the time of his death, the purchase of this 40 was open to any one, under the facts as we have found them, as previously stated herein. We think these facts, in connection with what has been said above, also demonstrate that the evidence1 here fails to bring the cause within the influence of this principle, and we consider further discussion unnecessary.
[5, 6] Moreover, it would appear that the relief sought by the cross-bill should be denied upon the doctrine of laches. The deed to complainant and his mother was executed more than 36 shears previous to this litigation, and the burden rested upon the cross-complainants, after the lapse of so long a time, to show sufficient excuse why the claim was not asserted at an earlier period. Gayle v. Pennington, 185 Ala. 53, 64 South. 572. No such excuse is shown. The parties were not tenants in common, as insisted by counsel for appellees. Upon the face of the record, complainant and his mother were joint owners. The complainant not only resided upon the land for a long number of years, but for all this period of time has received the rents, incomes, and profits therefrom, and paid the taxes thereon, with no recognition of any rights on the part of any of the other children. Those cross-complainants, who testified in the cause in substance admit they knew of complainant’s claim to this 40. Gilbert Fowler testified that he knew of it “directly after the deed was made.” J. W. Fowler, another brother *517stated he knew of his [complainant’s] claim siface the date of his father’s death; and W. H. Fowler testified that all the family “spoke of this 40 as John’s 40.” It will appear therefore that the claim here asserted is completely barred. Gayle v. Pennington, supra; Martin v. Kelly, 132 Ala. 201, 31 South. 476; Brackin v. Newman, 121 Ala. 311, 26 South. 3.
We are therefore of the opinion the trial court erred in failing to recognize complainant’s one-half undivided interest by purchase. The decree will therefore be reversed, and the cause remanded to the court below that a decree may be there entered in conformity with the views -herein expressed.
Reversed and remanded.
ANDERSON, O. J., and SAYRE and MILLER, JJ., concur.