Corbit

Appeal from the judgment.

Plaintiff avers that he gave to defendant thirteen hundred dollars with which to buy a certain piece of land, containing about forty acres, and that defendant purchased the land with the money, taking the deed in his own name. He asks that defendant be declared his trustee and be compelled to convey.

Defendant, for answer, denies these allegations, and avers, with other matters not necessary to this consideration, that he purchased the property from its owner, Goldtree, for himself and his own use, Goldtree agreeing to accept in payment therefor the sum of thirteen hundred dollars, or a promissory note for that amount. He received his deed upon July 12, 1893. Thereafter one M. B. Corbit, wife of plaintiff, purchased from him, for a consideration of thirteen hundred dollars, thirty of *666 the forty acres, defendant reserving ten acres and certain water rights. He further avers that he has made a deed to said M. B. Corbit of the land purchased by her, and, she being dead, expresses his willingness to make any proper additional conveyance to her representatives.

The court finds that plaintiff desired to purchase the forty acres because its water rights…