allegations showing bad faith on the part of the defendant, such as an intention to wreck the credit of the plaintiffs, to place them in a position where they could not rebond the property, this by defendant claiming to recover, in its complaint in the foreclosure action, a grossly larger amount than was owing it from the plaintiffs.

The defendant, in its foreclosure action, sought to recover $2,137.64. This was more than four times the amount which the plaintiffs owed it. The defendant knew this, so the complaint states, and it certainly must have known approximately how much the plaintiffs were indebted to it. The judgment which it did recover was $496.67. This was only $31.03 more than the plaintiffs conceded they owed it, and this difference may be partly costs or partly interest. At any rate, the judgment recovered was substantially the amount which plaintiffs conceded they owed.

If, then, the defendant in this action maliciously, knowingly, and wilfully caused to be issued a summons against the plaintiffs in the foreclosure proceedings, wherein it was claimed that these plaintiffs owed the defendant in that action more than four times the amount which these plaintiffs actually did owe it, and, in the same action, caused a warrant of seizure to be issued, taking all the property above mentioned, of the value of $2,500, into its possession, and this, with the intent and purposes alleged in the complaint in this case, it would seem there could be no doubt that such acts constituted malicious abuse of process. Farmer v. Crosby, 43 Minn. 459, 45 N. W. 866.

It may be conceded that the defendant in its foreclosure action had a legal right to have a warrant of seizure issued, default having occurred in the terms of the chattel mortgages. Under the cover of this legal right, however, it cannot be permitted to perpetrate a legal wrong. It had a right to a warrant of seizure to take possession of all the property; for it had a lien, by its mortgages, upon all the property, for the purpose of foreclosing the mortgages and selling the property, or sufficient thereof to discharge the obligation which these plaintiffs then owed it.

It had no right to the possession of the property for any other purpose. It was not entitled to the possession of the property for the purpose of foreclosing the mortgages for an amount more than four times in excess of what these plaintiffs then owed it.

They had no right to the possession of the property for any such purpose; that they did this wilfully, maliciously, and for the ulterior pur

poses stated, the allegations of the complaint leave no room for doubt. It should not have been the purpose of the defendant, in its foreclosure action, to have caused these plaintiffs great and unnecessary expense.

Under 8133, Comp. Laws 1913, the defendant, upon the default in the chattel mortgages, could have sold the oats upon the farm where they were located, in the ordinary manner of foreclosure of chattel mortgages, by advertisement, and there was sufficient of them to have paid every dollar which these plaintiffs then owed the defendant.

The defendant may not be required to proceed in that manner, but it is another reason which shows the defendant, in its foreclosure proceeding, as alleged by the plaintiffs, proceeded wilfully and maliciously.

This case is not one where a process was issued in good faith, and placed in the hands of an officer who, in exercising the powers conferred upon him by the writ, caused damage. In such case, the one who caused the writ to be issued might take refuge under the principle that the acts causing the damage were those of the officer, and that the one causing the writ to be issued and placed in his hands was not responsible for the acts of such officer.

In this case, however, the complaint shows that the writ was maliciously and wilfully issued for the collection of a sum more than four times of what could justly be collected. It shows, in effect, that the foreclosure proceedings were conducted in a harsh, unreasonable, and oppressive manner. In all these above circumstances, we are of the opinion the plaintiffs could recover in this action, whatever damages they suffered or to which they could show themselves entitled.

We are of the opinion that the complaint, as a whole, states a cause of action.

The judgment appealed from is reversed, and the case is remanded to the lower court for a new trial.

The appellant is entitled to statutory costs and disbursements on appeal.

BRONSON and ROBINSON, JJ., concur.

CHRISTIANSON, Ch J., and BIRDZELL, J., dissent.

WILLIAM F. KERNKAMP, Respondent, v. ANNA SCHULZ, Ap

pellant.

(176 N. W. 108.)

Trusts- when real property is transferred to one person and the consideration paid by another, a trust is presumed in favor of the payee.

1. Section 5365, Comp. Laws 1913, reads as follows: "When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.”

The plaintiff, and one Wm. Schulz, now deceased, were the owners and equally interested in several quarter sections of school land. The title of one of the quarter sections, purchased at a school-land sale, was evidenced by a contract taken in the name of Schulz, though it appears, by competent evidence, that the plaintiff paid one half of part of three purchase-price payments, each for $512, and one half of the interest on deferred payments, and one half of the taxes from the year 1903 to the year 1918; and that then the defendant paid, without the knowledge or consent of the plaintiff, the last two payments on the school-land contract, and the interest then due.

William Schulz, prior to his death, assigned the contract to his wife, this defendant.

It is held, under the above section, that the said William Schulz held onehalf interest in said land in trust for the plaintiff, subject only to the condition that the plaintiff must pay one half of the two remaining payments paid by the defendant, and half of the accrued interest on such payments made by her.

Trusts

wrongfully detaining thing or gaining it by mistake.

2. Under §§ 6279 and 6280, Comp. Laws 1913, it is further held that the contract for the purchase of the school land in controversy was inadvertently, and by mistake, taken in the name of William Schulz, and that he held onehalf interest in the land described therein, as an involuntary trustee for the benefit of the plaintiff, upon the plaintiff paying his one half of the purchase price thereof, and one half of the interest on deferred payments, and one half of the taxes levied against such land during each year since it was so purchased.

Opinion filed December 18, 1919.

Appeal from a judgment of the District Court of Barnes County, J. A. Coffey, J.

Judgment affirmed.

M. J. Englert, for appellant.

The authorities are conclusive on the subject that if the complaint alleges an agreement, constituting an express trust, then there can be no resulting or implied trust. Golschalck v. Fulmer, 51 N. E. 852; Potter v. Clapp (Ill.) 96 Am. St. Rep. 322, 68 N. E. 81; Monson v. Hutchin (Ill.) 62 N. E. 788; Byers v. McEnry (Iowa) 91 N. W. 797; Stevens v. Fitzpatrick (Mo.) 118 S. W. 51; Butts v. Cooper (Ala.) 44 So. 616; Russ v. Mebius, 16 Cal. 350; Walker v. Bruce (Idaho) 97 Pac. 250; Ames v. Howes (Idaho) 93 Pac. 35.

"A parol promise or agreement by one person to purchase lands and hold them in trust for another is within the statute of frauds, and not enforceable as an express trust." 39 Cyc. 49 (c) and authorities cited to note 69; Harvey v. Shipe (Va.) 88 S. E. 830; Ferguson v. Robinson (Mo.) 167 S. W. 447; Doom v. Brown (Ky.) 188 S. W. 475; Church v. Smith (Ind.) 100 N. E. 384.

"A verbal agreement between two or more persons to make a joint purchase of lands, title to be taken in the name of one for the benefit of all, is within the rule" (of the Statute of Frauds, and not binding). 39 Cyc. 49 (c) and authorities cited under note 70; N. D. Comp. Laws 1913, § 5963.

The authorities hold that claim of possession and payment of taxes is not sufficient to take the matter out of the Statute of Frauds, or to establish a resulting trust. Godschalck v. Fulmer (Ill.) 51 N. E. 852; Perkins v. Perkins (Mass.) 63 N. E. 926; Harney v. Burhns (Wis.) 64 N. W. 1031; Englebracht v. Herrington, 101 Kan. 720, 172 Pac. 715, L.R.A.1918E, 785, and authorities cited; Smith v. Burnham, 3 Sumn. 435, Fed. Cas. No. 13,019; Bigler v. Baker (Neb.) 24 L.R.A. 255, 58 N. W. 1026.

No trust results in favor of the party paying the consideration, or part thereof, for land, where the title is made to another with his consent. Monson v. Hutchin (Ill.) 62 N. E. 788; Ecton v. Moore, 4 Ky. L. Rep. 307; Palmer v. Sterling, 41 Mich. 218, 2 N. W. 24; Tiedeman, Real Prop. Enlarged ed. p. 476, § 500; 39 Cyc. 104 (b) and authorities cited; Godschalck v. Fulmer (Ill.) 51 N. E. 852; Home Land & Loan Co. v. Routh, 123 Ark. 360, 185 S. W. 467, Ann. Cas. 1917C, 1142; Pavlovich v. Pavlovich (Cal.) 135 Pac. 303; Land Co. v. McGregor

(Iowa) 149 N. W. 617; Bernauer v. McCall-Webster Elev. Co. (N. D.) 171 N. W. 282; Andreas v. Andreas (N. J. Eq.) 94 Atl. 415; Casey v. Casey, 146 N. Y. Supp. 348; Martin v. Thomas (Or.) 144 Pac. 684; O'Donnell v. McColl (Wash.) 154 Pac. 1090; Belcher v. Young (Wash.) 155 Pac. 1060.

Where the plaintiff seeks to establish a resulting trust, and depends. upon the same through circumstances of making the payment, or paying the consideration, the payment of consideration must be made and paid by him at the time of the transaction or the sale. Ostheimer v. Single (N. J. Eq.) 68 Atl. 231; Howell v. Howell, 15 N. J. Eq. 78; Brooks v. Fowler, 14 N. H. 248; Kelly v. Johnson, 28 Mo. 249; Woodside v. Hewell (Cal.) 42 Pac. 152; Millard v. Hathaway, 27 Cal. 119; Doll v. Gifford (Colo.) 56 Pac. 676; Burden v. Sheridan (Iowa) 14 Am. Rep. 505; Webb v. Webb (Iowa) 104 N. W. 438; Parker v. Newitt (Or.) 23 Pac. 246; Hickson v. Culbert, 19 S. D. 207, 102 N. W. 774.

The measure of proof necessary in case where the plaintiff claims a resulting trust in his favor must be clear and free from reasonable doubt. Bernauer v. McCaull-Webster Elev. Co. (N. D.) 171 N. W. 282; Lehman v. Lewis, 62 Ala. 129; Hencke v. Floring, 114 Ill. 554; Green v. Deitrich, 114 Ill. 636; St. Patrick's Church v. Daly, 116 Ill. 76; Woodward v. Sibert, 82 Va. 441; Catoe v. Catoe (S. C.) 10 S. E. 1078; Hoover v. Hoover, 29 Pa. 201; Behm v. Molly (Pa.) 19 Atl. 562; Guest v. Guest, 74 Tex. 664.

A. P. Paulson, for respondent.

"No variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits." N. D. Comp. Laws 1913, § 7878; Maloney v. Geyser Mfg. Co. 17 N. D. 195, 115 N. W. 669; Robertson v. Moses, 15 N. D. 351, 108 N. W. 788; Halloren v. Holmes, 13 N. D. 411, 101 N. W. 310.

"When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." Fleischer v. Fleischer, 11 N. D. 221, 91 N. W. 51; Dalrymple v. Security Loan & T. Co. 9 N. D. 306, 79 N. W. 981.

There was no delay on the part of the plaintiff, after he learned the true situation, to enforce his rights, and he certainly cannot be accused