I. H. CARUTHERS, APPELLANT,

v.

R. W. WILLIAMS, APPELLEE

The Chibe Justice

delivered the opinion of the court:

In the case of Matthews vs. Porter, 16 Fla., 466, it was decided by this court that in cases of this nature where the deed shows the consideration to have been paid by one person, that the evidence going to show that the money paid was really the property of another must be clear and convincing in order to establish a resulting trust. If Williams advanced to Caruthers the money required for purchasing the 'land, under an agreement with him to hold the title as a security merely for the money advanced, and to convey the laud to Caruthers upon receiving the loaned money and the interest due thereon, then Williams was a creditor of Caruthers from the 7th of February for the amount of the purchase money paid by Williams for Caruthers, and the deed to Williams from the Florida Land and Improvement Company is in equity a mortgage from Caruthers to Williams. We think the evidence clearly and satisfactorily shows that such was the agreement between the parties. That Williams did not keep faith with the complainant is plainly shown. He holds title as the trustee of Caruthers and as security to reimburse him for the money loaned to Caruthers.

It is objected on the part of appellee and this objection seems to have been sustained by the Chancellor that such an agreement as the one in this record comes within the Statute of Fraud. In J. & H. Byrd vs. McLean & Wife, 1 Johnson Chancery Reports, 582, Chancellor Kent says: “ The ground on which the claim of the plaintiff rests is, that the $1,500 which were paid to Thomas Oolden in 1807, as the consideration for the purchase of the premises, were the moneys of the plaintiffs procured from the defendant as a loan and-that the defendant took the deed in his own name by agreement and becomes thereby a trustee for the complainants, and that such a resulting trust being a trust arising ‘ by implication or construction of law ’ is expressly excepted from the operation of the Statute of Frauds, and may be proved by parol.” Our Statute of Frauds has the same express exception. McClellan’s Digest, p. 214, see.

2. On this state of facts, which are precisely similar to the case at bar, Chancellor Kent, after a review of all the preceding authorities, decides that it was a trust resulting from the implication or construction of law'and not within the Statute of Frauds, and that such a trust could be proved by parol proof. See 16 Fla., 466 Ward et al. vs. Spirey, 18 Fla., 847.

The bill alleges that the transaction occurred on the 7th February, 1883. That the money was borrowed at twenty-five per cent, interest. The bill alleges that one hundred aud three dollars was tendered defendant some time in March. The evidence shows that it was the-24th day of March. A calculation will show that it was not the full amount due for principal and interest stipulated for, to-wit, twenty-five per cent.

Even if it had been the full amount the complainant owed to defendant it would not avail the complainant as a •tender, inasmuch as the bill fails -to allege that the complainant always kept the money ready to pay to defendant, on demand aud complainant has not paid same into court at the time of filing his bill. Matthews vs. Lindsay, 20 Fla., 962.

The decree of the Circuit Court is reversed and the cause is remanded with instructions to the court, or to the Judge-of said court in vacation, to aptpomt a master to take and settle an account between complainant, J.

H. Caruthers,. and R.

W. Williams, in which account he shall charge-said Caruthers with one hundred dollars and interest thereon at twenty-five per centum per annum from the 7th day of February, A. D. 1883, to the date of said settlement-That upon payment by Caruthers to the master of the sum found to be due from Caruthers to said Williams within 90 days after notice to said Caruthers of the finding of said master, and interest at twenty-five per centum on the original indebtedness of one hundred dollars from the time of stating the account by the master to the time of making the deed hereinafter mentioned, said master shall cause the said R.

W. Williams to come before him and shall prepare and cause the said Wiliiams to execute a quit claim deed to the east half of the southwest quai’ter of section twenty-four, township twenty-one, range twenty, south and east, to the said Iverson H. Caruthers, and that the said R.

W. Williams shall at the time of making the deed aforesaid -deliver to said master, to be by him delivered to Caruthers, any and all evidences of title received by him, the said Williams, from the Florida Land and Improvement Company, and further that said Williams shall pay all the costs of the Circuit Court and of this court and the costs of reference herein ordered, except the cost of drafting and executing the quit claim deed aforesaid.