
84 S.E.2d 289 (1954)
241 N.C. 11
H. M. BOWEN and wife, Bessle Ray Bowen; J. W. Bowen and wife, Verna V. Bowen; John A. Bowen and wife, Annie May Bowen; J. L. Bowen and wife, Ruby Bowen; Fannie Mae Bowen Hines (widow); T. A. Bowen and wife, Lizzie Mae Bowen; Mack Bowen and wife, Clara Bowen; D. G. Bowen and wife, Edith Bowen, and Pauline Bowen,
v.
Hildred Bowen DARDEN and husband, George H. Darden, Jr.; First Federal Savings & Loan Association of Greenville, North Carolina, a corporation, and A. C. Tadlock, Trustee.
No. 312.
Supreme Court of North Carolina.
November 3, 1954.
*291 Jones, Reed & Griffin, Kinston, for plaintiffs, appellants.
Blount & Taft, James & Speight, and W. H. Watson, Greenville, for defendants, appellees.
JOHNSON, Justice.
Trusts are classified in two main divisions: express trusts and trusts by operation of law. The cardinal distinction between the two classes is that an express trust is based upon a direct declaration or expression of intention, usually embodied in a contract; whereas a trust by operation of law is raised by rule or presumption of law based on acts or conduct, rather than on direct expression of intention. Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83; 54 Am.Jur., Trusts, sections 186 and 187. See also 65 C.J., p. 220 et seq.
In the case at hand we are concerned only with trusts by operation of law. These are classified into resulting trusts and constructive trusts. The essential elements and distinguishing characteristics of these trusts are too well defined and delineated in former decisions of this Court and standard texts to require restatement here. See Henderson v. Hoke, 21 N.C. 119, p. 149; Summers v. Moore, 113 N.C. 394, 18 S.E. 712; Avery v. Stewart, 136 N.C. 426, *292 48 S.E. 775, 68 L.R.A. 776; Norton v. McDevit, 122 N.C. 755, 30 S.E. 24; Harris v. Harris, 178 N.C. 7, 100 S.E. 125; Kelly Springfield Tire Co. v. Lester, 190 N.C. 411, 130 S.E. 45; Speight v. Branch Banking & Trust Co., 209 N.C. 563, 183 S.E. 734; 54 Am.Jur., Trusts, sections 188, 193, 203, and 218.
It suffices for present purposes to bear in mind these distinguishing factors: that the creation of a resulting trust involves the application of the doctrine that valuable consideration rather than legal title determines the equitable title resulting from a transaction; whereas a constructive trust ordinarily arises out of the existence of fraud, actual or presumptiveusually involving the violation of a confidential or fiduciary relationin view of which equity transfers the beneficial title to some person other than the holder of the legal title. Also, a resulting trust involves a presumption or supposition of law of an intention to create a trust; whereas a constructive trust arises independent of any actual or presumed intention of the parties and is usually imposed contrary to the actual intention of the trustee. Lefkowitz v. Silver, 182 N.C. 339 at pages 347, 348, 109 S.E. 56, 23 A.L.R. 1491; 54 Am.Jur., Trusts, section 188.
Decision here does not require us to determine whether the plaintiffs' allegations and proofs are sufficient to establish a constructive trust. This is so for the reason that our examination of the record leaves the impression that the plaintiffs alleged facts sufficient to constitute a resulting trust and that the evidence on which they rely to establish such trust is sufficient to carry the case to the jury.
In pleading a resulting trust it suffices to allege the ultimate facts as to who paid the consideration and to whom the conveyance was made, Vail v. Stone, 222 N.C. 431, 23 S.E.2d 329; 54 Am.Jur., Trusts, section 598; whereas ordinarily the burden of making out a prima facie case for the jury is sustained by the introduction of evidence of a conveyance to one person upon consideration furnished by another. Summers v. Moore, supra; Harris v. Harris, supra; 54 Am.Jur., Trusts, sections 193, 203, and 662. However, where, as here, the persons seeking to establish a resulting trust allege a conveyance made to a child on consideration moving from a parent, nothing else appearing, the relationship of parent and child gives rise to a rebuttable presumption that a gift or advancement was intended by the parent, and unless and until rebutted by affirmative evidence of a contrary intent, this presumption stays the hand of equity and prevents it from raising a trust in favor of the parent. Accordingly, when the relationship of parent and child obtains, in order to make out a prima facie case, the persons seeking to establish the trust must rebut the presumption raised by this relationship by offering evidence sufficient to justify the inference that the parent had no intention to create a gift or advancement. Creech v. Creech, 222 N.C. 656, 24 S.E.2d 642; 54 Am.Jur., Trusts, section 205.
To establish a resulting trust, the rule is that the evidence must be clear, strong, and convincing. However, it is to be kept in mind that it is not the function of the presiding judge to apply this rule in the sense of passing upon the intensity of the proofs. That is a matter solely within the province of the jury. On motion for nonsuit, the question for the presiding judge to determine is whether there is any substantial evidence to support the plaintiff's case. If so, it then becomes the function of the jury, under proper instructions, to decide whether the evidence meets the intensity requirements of the rule. Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; Kelly Springfield Tire Co. v. Lester, supra; Avery v. Stewart, supra.
The plaintiffs in their complaint allege in substance: (1) that for a number of years before purchasing the residential property in Greenville the defendants Hildred Bowen Darden and husband, George H. Darden, Jr., had lived in the home of Mrs. Fannie V. Bowen, located on a farm in Pitt County, and had "handled all her *293 business affairs and transactions, including the operation of her farm * * *"; (2) that the property in Greenville was purchased with individual funds of Mrs. Bowen, with the defendants Hildred Bowen Darden and husband, George H. Darden, Jr., acting for her and making the "arrangements for the preparation of the deed * * *"; and (3) "that the taking of the title to the property in the name of Fannie V. Bowen for life, remainder in fee to Hildred B. Darden, without the knowledge, consent or acquiescence of Mrs. Bowen * * * constituted Hildred B. Darden the holder of the legal title to the remainder interest in the property in trust for the use and benefit of * * * Fannie V. Bowen, creating * * * a resulting trust," and entitling the plaintiffs to have the defendant Hildred B. Darden decreed the holder of the legal title to the premises in trust for the use and benefit of all the surviving children of Fannie V. Bowen, deceased.
The plaintiffs offered evidence tending to show that for a long period of years before the purchase of the Greenville property the defendants Hildred B. Darden and husband, George H. Darden, Jr., had lived in the home of Mrs. Fannie V. Bowen on her farm in Pitt County and had assisted her in handling her business affairs and transactions, "including operation of the farm, and * * * in making contracts relative to the cultivation of same * * *"; that prior to October, 1946, the defendant George H. Darden, Jr., had taken over the management and operation of the farm under the direction of Fannie V. Bowen, and from year to year looked after the purchasing of fertilizers, the planting, cultivation, and marketing of crops, and performed other duties incident to the successful operation of the farm.
The further evidence on which the plaintiffs rely includes excerpts from the transcription of the testimony of Mrs. Bowen at the first trial, which may be summarized as follows:
That when Mrs. Bowen went to the law office where the deed was prepared, she went with the defendants Darden; that all the purchase money of $21,000 was paid from funds belonging to or borrowed by Mrs. Bowen; that she borrowed from George H. Darden, Jr., $2,300 with which to complete the payment of the purchase price of $21,000; that George H. Darden, Jr., had the deed fixed; that he had it made like he wanted it; that Mrs. Bowen had confidence in him and did not read it; that she was disappointed when she later learned it was written so as to convey the remainder interest to Hildred B. Darden. As Mrs. Bowen put it: "when I found out it was wrote like it was * * * it hurt me to my heart." She further testified:
"At the time George carried me to the lawyer's office, of course, it was my understanding that I was borrowing the money (the $2,300 portion of the purchase money paid from funds belonging to the defendant George H. Darden, Jr.). I wouldn't have took all that on me to pay (the $21,000 purchase price) and he just pay $2,300."
"By The Court: When you got the deed did you agree with your son-in-law (George Darden) that if you were never able to pay back the $2,300 they (the defendants Darden) could have the place if they stayed and waited on you? A. I never agreed to that. He said, `You need not hurry about paying me, if you die before it is paidwe are going to stay with youare you willing for us to have the house?' I said, `Yes, if you stay with me as long as I live,' and they left. * * * I told them all the time I was going to pay them back. * * * The day that deed was wrote up, George said, `Miss Fannie, if you never pay me this, if you will leave it to us at your death.' I said, `I'm going to pay you, but if I never pay it you are welcome to it,' and if they had stayed with me my lifetime and waited on me they would have been welcome. * * * I told him if he and Hildred stayed with me until I died I would leave them the property. I meant by that statement that if I happened to die before I paid him that $2,300. I meant I was going to make a will; I would have made a will if it had been necessary. *294 I tried to do all I could for them. I had not agreed that George and them could have it in any event, whether they stayed with me or not; they had to stay with me my lifetime. (Other evidence discloses that Mrs. Bowen, along with the defendants Darden, moved into the Greenville residence in January, 1947, but that as a result of unhappy family differences the Dardens moved away during or about the year 1950 and did not return.) * * * I reckon it was six months or more before I found out the deed had this provision in it: `This deed made this the 23rd day of October, 1946, by M. B. Massie and wife to Fannie V. Bowen and Hildred Bowen Darden, for and in consideration of _____, said parties of the first part have bargained, sold and conveyed to Fannie V. Bowen for and during the term of her natural life, then to Hildred B. Darden, her heirs and assigns.' I did not agree that that be put in the deed when I paid my money at Mr. Taft's office, and I did not know that provision was in the deed and did not agree it could be written that way * * *. When I first found out it was in there differently I thought to myself when I paid that money back (the $2,300 of the purchase money she testified she borrowed from the defendant George H. Darden, Jr.) the court would give me a deed. * * * I had great dependence in him (George) and when I found out that deed was wrote like it was, I near `bout had a heart attack."
The foregoing testimony, and other evidence corroborative thereof, when viewed with the liberality required on motion to nonsuit, is sufficient to justify, though not necessarily to impel, the inferences (1) that when Mrs. Bowen purchased the house and lot she did not intend to make a gift or advancement of the remainder interest to her daughter Hildred B. Darden, and (2) that a trust resulted in favor of Mrs. Bowen. This makes it a case for the jury.
We have not overlooked the defendants' contention that the nonsuit entered below should be sustained under their plea of res judicata based on the contention that the judgment in the former action of Bowen v. Darden is a bar to the present action. G.S. § 1-25. As to this, the rule is that a former judgment of nonsuit is res judicata as to a second action when and only when it is made to appear that the second action is between the same parties or their privies, on the same cause of action, and upon substantially the same evidence. Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82, and cases there cited. In the case at hand, the plaintiffs have alleged and rested their right of recovery upon the theory of a resulting trust; whereas no such cause of action was alleged in the former case.
Nor is there merit in the defendants' contention that the instant action is barred by the statute of limitations of three years. G.S. § 1-52(9). A resulting or constructive trust, as distinguished from an express trust, is governed by the tenyear statute of limitations. G.S. § 1-56. Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223; Teachey v. Gurley, supra; Creech v. Creech, supra; Norton v. McDevit, supra. Moreover, it is established by authoritative decisions of this Court that the statute of limitations does not run against a cestui que trust in possession. McAden v. Palmer, 140 N.C. 258, 52 S.E. 1034; Norton v. McDevit, supra; Stith v. McKee, 87 N.C. 389; Mask v. Tiller, 89 N.C. 423. The record discloses that Fannie V. Bowen, under whom the plaintiffs claim, remained in possession of the property until her death in 1952.
Upon the record as presented the plaintiffs' case appears to be one for the jury. Let the judgment as of nonsuit entered below be
Reversed.
