Henry Billings Brown

“ We think the contention of the plaintiffs that a trust is made out by operation of law is not sustained. The allegations amount to nothing more than that they made certain advances of money to defendant for the purchase of this interest; but when, or in what form, or at what time such advances were made is left entrel y unanswered. As plaintiffs have chosen to stand upon their complaint without apparently asking leave to amend, which we cannot doubt would have been readily granted, we are constrained to hold the allegations insufficient to create a trust. ”

“ In one place they say that they thereby permitted and enabled the defendant to procure a patent for said premises, and from time to time thereafter paid the defendant, and immediately follow it by an averment that thereafter, to-wit, on or about the 15th day of May, the defendant made the purchase. The subsequent allegation throws additional doubt upon the question, and, in fact, is susceptible of the implication that plaintiffs were by no means confident that they had paid any considerable amount, but were willing to pay their share upon being informed of the amount still due. ”

“ Section 2326 provides also for proceedings upon filing adverse claims, declaring that it shall be the duty of the adverse claimant, within 30 days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment. ”