Appeal from a judgment of the Superior Court of the City and County of San Francisco.

The facts are stated in the opinion of the court.

Where real property is purchased and the conveyance of the legal title is taken in the name of one person, while the consideration is paid by another, a trust arises in favor of the person paying the purchase price, and the holder of the legal title becomes a trustee for him. (Civ. Code, sec. 853; 2 Pomeroy’s Equity Jurisprudence, sec. 1037, and cases.) The facts out of which the trust arises may be proved by parol. (Boyles v. Baxter, 22 Cal. 575; Millard v. Hathaway, 27 Cal. 119; Sandfoss v. Jones, 35 Cal. 481; Roberts v. Ware, 40 Cal. 637.) Possession of the trustee is possession of the cestui que trust, and the statute of limitations does not run. As between them, no length of time is a bar so long as the trustee does not repudiate the trust. (Edwards v. University, 1 Dev. & B. Eq., 325; McKethan v. Murcheson, 73 1ST. C. 483; 30 Am. Dec. 170; Farnam v. Brooks, 9 Pick. 212; Provost v. Gratz, 6 Wheat. 481; Chicago etc. R. R. Co. v. Hay, 119 111. 493; Kane v. Bloodgood, 7 Johns. Ch. 90; 11 Am. Dec. 417; Dow v. Jewell, 18 1ST. H. 349; 45 Am. Dec. 371; Schroeder v. Johns, 29 Cal. 274; Miles v. Thorne, 38 Cal. 335; 99 Am. Dec. 384; Ponce v. McElroy, 47 Cal. 155; Wood on Limitations, sec. 413.) Under our statute a stale equity is not a ground of demurrer. (Code Civ. Proc., secs. 307, 430 et seq.; Cook v. De la Guerra, 24 Cal. 239; Cordier v. Schloss, 12 Cal. 147; Kimball v. Lohmas, 31 Cal. 159; Bowen v. Aubrey, 22 Cal. 566.) The defendant having departed from the state, after the cause of action accrued, assuming that no demand upon him was necessary, the statute is in abeyance while he remains absent. (Code Civ. Proc., sec. 351; Hunt v. Sansane, 110 U. S. 151.)

The trust was a resulting one, and the oral agreement to convey to plaintiff, whether the infant was bound by it or not, did not change the character of the trust. (Bayles v. Baxter, 22 Cal. 575.) An action to enforce such a trust is within the statute of limitations, and the demurrer was rightly sustained on that ground. (Perry on Trusts, sec. 865; McLane v. Shepherd, 21 N. J. Eq. 76; Murdock v. Hughes, 7 Smedes & M. 219; Strimfler v. Roberts, 18 Pa. St. 300; 57 Am. Dec. 606; Howell v. Howell, 15 Wis. 55.) If the plaintiff’s action be regarded as resting, not upon the supposed resulting trust, but upon the agreement alleged to have been made by parol, it must fail, because not only was it without consideration, but being by parol it could not of itself create a trust. (Civ. Code, secs. 852, 1624; In re Groome, 94 Cal. 72; Barr v. O’Donnell, 76 Cal. 471; 9 Am. St. Rep. 242.) The action is barred by laches in its prosecution. (Smith v. Clay, 3 Brown’s Ch. 640, note; Bell v. Hudson, 73 Cal. 287; 2 Am. St. Rep. 791; Henner v. Moulton, 138 U. S. 495 (delay of 13 years); Harris v. Hillegass, 66 Cal. 79 (delay of 20 years); Godden v. Kimmel, 99 U. S. 201, 210 (delay of 14 years); Codman v. Rogers, 10 Pick. 119 (delay of 17 years); Neppach v. Jones, 20 Or. 491; 23 Am. St. Rep. 145 (delay of 10 years); Groendyke v. Coffeen, 109 111. 339 (delay of 16 years); Speidel v. Henrici, 120 U. S. 367;'Hume v. Beale, 17 Wall. 336; Matter of Neilly, 95 N. Y. 390; Story’s Equity Jurisprudence, sec. 1520; McKnight v. Taylor, 1 How. 168; Pratt v. Vaiier, 9 How. 416.) The rule of these cases is applicable to actions of the same character as plaintiff’s. (Birdsall v. Johnson, 44 Mich. 134; Blip v. Prichard, 67 Mo. 181; West v. Russell, 74 Cal. 544; Shorter v. Smith, 56 Ala. 210; Henner v. Moulton, 138 U. S. 486; Godden v. Kimmel, 99 U. S. 201; Castner v. TFaZrod, 85 111. 171; 25 Am. Rep. 369; Hume v. Beale, 17 Wall. 336; Pratt v. Fafo'er, 9 How. 416.) There is no doubt that the defense of laches may be taken by demurrer. (Speidel v. Henriei, 120 U. S. 367; National Bank v. Carpenter, 101 U. S. 567; Lansdale v. Smith, 106 U. S. 391; ReZZ v. Hudson, 73 Cal. 285; 2 Am. St. Rep. 791; Harris v. Hillegass, 66 Cal. 79.) Defendant’s absence from the state did not constitute any impediment to the plaintiff’s maintaining an action. The court had power, upon service of process upon defendant without the state in any mode sanctioned by the statute of the state, to appoint a commissioner to convey the property to plaintiff, or to grant him any other form of relief essential to the full and adequate enforce'ment of his rights. (Felch v. Hooper, 119 Mass. 52; Perkins v. Wakeham, 86 Cal. 580; Adams v. Cowles, 95 Mo. 501; 6 Am. St. Rep. 74; Applegate v. L. M. Co., 117 U. S. 266; Arndt v. Griggs, 134 U. S. 320.)