Points decided. quired to entitle the party to interest. She only recovered Judgment affirmed. Mr. Justice CURREY expressed no opinion. JAMES M. BURT, EXECUTOR OF THE ESTATE OF THOMAS TRUSTS, EITHER EXPRESS OR BY IMPLICATION OF LAW.-If two partners are the purpose of enabling the grantee to raise money by mortgaging the MISTAKE AS TO LEGAL EFFECT OF DEED.-If the language of a deed is the language intended to be used by the grantor, his mistake as to the legal effect of the language used will not afford him any ground for relief in equity. 1 WAIVER OF PROTECTION OF STATUTE OF FRAUDS. If a defendant, sought to be charged as trustee on a contract within the Statute of Frauds, admits the contract in his answer, and does not claim the benefit of the statute, he is considered as waiving its protection; but if he claims the benefit of the statute in his answer, he is entitled to it. 1. Cited, Morrall v. Waterson, 7 Kan. 207. Argument for Appellant. VENDOR'S LIEN AS AGAINST ADMINISTRATOR OF GRANTEE.-If one sells land to another, and executes an absolute conveyance, and does not receive payment, the grantee holds the land in trust for the grantor to the extent of the purchase-money, which trust descends to the representatives and heirs of the grantee, against whom a lien for the purchase-money will be enforced. COMPLAINT TO ENFORCE TRUSTS.-A claim to enforce an express or implied trust may be joined in a complaint with a claim to enforce a vendor's lien existing without any written contract. APPEAL from the District Court, Second Judicial District, Butte County. The plaintiff appealed from the judgment. The other facts are stated in the opinion of the Court. J. E. N. Lewis, for Appellant. Conveyances without a consideration expressed in the instrument, create a resulting trust to the grantor. The demurrer admits that the deed of January 6, 1862, was without a consideration, and that the consideration expressed therein was never paid, and was inserted through ignorance of the parties, and misapprehension as to the effect of expressing a consideration where none was paid. Those admissions put the deed upon the same foot[633] ing as if no *consideration had been expressed in the instrument. It is the payment of the consideration, though nominal, that creates the presumption that the grantee should have the use, and not the grantor. (Story Eq. Jur., Secs. 1196 to 1200.) The ignorance of the law, in a manner and form charged in the complaints, amounts to a mistake of fact that would warrant a Court of equity in reforming the deed to the true intent and meaning of the parties. (1 Story Eq., Sec. 115; Id. Secs. 121, 122, 136; vide Note to Sec. 122; Hunt v. Rousmaniere, Adm'r, 1 Pet. 13, 17; Hyde v. Tanner, 1 Barb. 75; Barnes v. Carnack, 2 Barb. 392; Taylor v. Fleet, Id. 471; Taylor v. Luther, Sum. 133.) Upon the showing that the trust should be established by some instrument in writing, signed by the party sought to Argument for Appellant. be charged with it, or declared in the deed, the averments. in the complaints as to how the proceeds of the ditch was shared, how the books in relation to the ditch property were kept, and how the ditch property was managed, and that Wilson, during his lifetime, acknowledged the trust, and that Walker never gave possession of the ranch, but remained in the possession thereof to and at the time of his death, are evidence enough in writing to bring the case within the provisions of the statute. (Sanderson v. Jackson, 2 Bos. & P. 238; Penniman v. Hartshorn, 13 Mass. 87; also the principle enunciated in Taylor v. Luther, 2 Sum. 233.)· The statute excepts trusts "arising from or being extinguished by implication or operation of law." (Wood's Dig., Art. 395.) Our statute, like the English statute, does not prescribe any particular form or solemnity in writing, nor that the writing should be under seal. Hence, any writing sufficiently evincive of a trust, as a letter or other writing of a trustee stating the trust, or any language in writing clearly expressive of a trust, is sufficient. (Story Eq. Jur., Sec. 972, and Note 2.) In those cases where the deed expresses a consideration, when in truth and fact none was paid, and it was inserted by *fraud in fact, or by a mistake, or by a [634] misapprehension of the parties as to the effect of the deed, and in such like cases, the Court will permit evidence to show that the deed was intended between the parties as a trust, and on proof of those facts, by intendment of law, a trust is created for the use and benefit of the grantor, subject to the mortgage given. (Cripps v. Jee, 4 Bro. Ch. 472; 7 U. S. Dig., p. 193, Sec. 108; 15 U. S. Dig., p. 203, Sec. 58; 11 U. S. Dig., p. 163, Sec. 36; 4 Kent, 306; vide Note 1, Subd. 12.) On the hypothesis that it was a sale by deed absolute, the grantor is entitled to the consideration expressed in the deed. The defendants cannot hold the property and refuse to pay what they contend was the consideration of the deed, to wit, seventeen thousand dollars. If they ask equity, they must do equity. (Leman v. Whitney, 4 Russ. 422; Squire Argument for Respondent. v. Harder, 1 Paige, 494; Story Eq. Jur., Secs. 1196 to 1199; Bruen v. Ione, 1 Barb. 586.) The cestui que trust is seized of the freehold in contemplation of equity. The trust is regarded as the land, and the declaration of trust is the disposition of the land. (4 Kent, 1 Ed. 304.) A trust, in the general and enlarged sense, is a right on the part of the cestui que trust to receive the profits. Mr. Chief Justice Kent says that "the contrast between uses and estates at law were extremely striking. When uses were created before the statute of uses, there was a confidence that the feoffee would suffer the feoffor to take the profits, and that the feoffee, upon the request of the feoffor, or notice of his will, would execute the estate to the feoffor and his heirs, or according to his directions. When the direction was complied with it was essentially a conveyance by the feoffor, through his agent the feoffee." (4 Kent, 1 Ed. 292.) Trusts are now what uses were before the statute. (4 Kent, 1 Ed. 303.) A trust need not be created. by writing, but must be evidenced by writing. (4 Kent, 1 Ed. 305, 306, and Note b, citing Lord Alvanley, 3 Ves. 707; Leman v. Whitney, 4 Russ. 423; Fisher v. Fields, 10 Johns. 495; Sleeve v. Steeve, 5 Johns. Ch. 1.) [635] *Latch & McQuaid, for Respondent. There was no express trust, because there was no writing evidencing it. The Statute of Frauds of this State provides that "no estate or interest in lands, other than for leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing." (Sec. 6, Act concerning fraudulent conveyances.) There can be no express trust without a writing, subscribed, etc. There was no implied trust, or such trust as results "by act or operation of law," because the deed from Walker to Wilson Opinion of the Court-Shafter, J. was absolute on its face and expressed a consideration. A trust may result by operation of law where no consideration is expressed in the deed. To constitute a trust there must either be no consideration expressed or some writing inconsistent with the fact that the deed is absolute. Walker, if living, would not be permitted to impeach his own deed, expressing a valuable consideration, nor can his representative do it. We refer the Court to Russ v. Mebius (16 Cal. 350), and the cases there cited, as being conclusive upon this point. The amendatory and supplementary complaint in the record makes the original complaint no stronger upon this trust question. It sets up ignorance of the law on Walker's part, which cannot be pleaded in this action. It also details certain facts as evidence of the trust. The pleading is bad, and might be stricken out. It does not in the least affect the case. The amendment, however, sets up a new cause of action. Taken with the original complaint there is an improper joinder of actions. The original complaint makes an action for the enforcement of a trust and the reconveyance of real estate. The amendment makes an action for a money judgment against the administrator of Wilson, and for the enforcement of a *vendor's lien. [636] It charges that the plaintiff's claim for seventeen thousand dollars, the amount of the purchase-money, was duly presented to the administrator of Wilson, and by him rejected. By the Court, SHAFTER, J.: This action was brought by Walker, in his lifetime, to compel the execution of a trust, or, alternatively, to enforce a vendor's lien. The complaint alleges that on or about the 6th of January, 1862, Walker and J. C. Wilson were partners in business, and were about closing up their partnership affairs; that the firm was embarrassed with debts and that some of the creditors had commenced attachment suits against the firm; that by reason of the dissipated habits of Walker, and |