The trust must arise, if at all, at the time the purchase of the real property is made. Adams, supra note 6, 256 P.2d at 461.Childers, supra note 5, 213 P.2d at 567; Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867, 872-73 (1946); Indian Trust, supra note 5, 162 P. at 822. For a discussion of the obligation borne by the party who seeks to overcome the presumption of resulting trust, see RESTATEMENT (SECOND) OF TRUSTS § 441.
The general rule applicable to the transactions here in question is that the acceptance of one form of security as a substitute for, or in addition to, another form of security does not, of itself, have the effect of extinguishing the original security interest. ( Crisman v. Lanterman, 149 Cal. 647, 653 [ 87 P. 89, 117 Am.St.Rep. 167]; Exchange Bank of Perry v. Nichols, 196 Okla. 283 [ 164 P.2d 867, 872]; Smith v. Thomas, 42 Idaho 375 [ 245 P. 399, 401]; Applegate v. Quackenbush, 1 N.J. Super. 327 [ 61 A.2d 577]; Morrison v. Steinberg, 166 App. Div. 264 [151 N.Y.S. 607], aff'd in 222 N.Y. 569 [118 N.E. 1069]; Greenfield v. Petty, 346 Mo. 1186 [ 145 S.W.2d 367, 370]; Tansil v. McCumber, 201 Iowa 20 [ 206 N.W. 680, 685]; Gravlee v. Lamkin, 120 Ala. 210 [24 So. 756, 759]; Russell v. Bosworth, 106 Ill. App. 314; Maloney v. Lafayette Bldg. Loan Assn., 69 Ill. App. 314; Ladd v. Wiggin, 35 N.H. 421, 426 [69 Am.Dec. 551]; 36 Am.Jur. 917.) An exception to that rule is not warranted where the first security is in the form of a conditional sale contract. ( Kelley v. Brack, 214 Ky. 9 [ 282 S.W. 190]; United States Fidelity Guaranty Co. v. Northwest Engineering Co., 146 Miss. 476 [ 112 So. 580, 583]; Greenwald Champenois v. Tinsley, 90 Miss. 38 [42 So. 89]; Page v. Edwards, 64 Vt. 124 [23 A. 917]; McArthur Bros. Mercantile Co. v. Hagihara, 22 Ariz. 100 [194 P. 336, 13 A.L.R.
An innocent purchaser for value, in turn, means one who has (1) purchased in good faith, (2) for valuable consideration, and (3) without notice. Exch. Bank of Perry v. Nichols, 164 P.2d 867, 876 (Okla. 1945).
However, in that case, an assignment of the oil and gas leases involved had been executed and delivered prior to the time of notice. See also, to the same effect: National Bond Investment Co. v. Central National Bank of Enid, 142 Okla. 96, 285 P. 828; Brooks v. Tucker, 83 Okla. 255, 201 P. 643, syl. 3; Atkinson v. King, 93 Okla. 37, 219 P. 914, syl. 4; Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867, 876. And in Fuller v. Peabody, 6 Cir., 1 F.2d 965, 967, the court, in holding that a purchaser was a bona fide purchaser for value, when it had irrevocably parted with the purchase price before notice, said:
In Oklahoma, as in general, the law is that the statute of limitation does not begin to run in favor of a trustee until the breach of trust is brought to the knowledge of the beneficiary. See Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867; McNeal v. Steinberger, 192 Okla. 283, 135 P.2d 490. There is no evidence that the owner of Bond No. 10 knew of the failure to set aside the sum to pay that bond or of a diversion to the Street and Alley Repair Fund, until he presented his bond for payment in October, 1954.
Equity looks beyond the form in which a transaction was clad and shapes its relief to carry out the parties' true intention. Cobb v. Whitney 1926 OK 920, 255 P. 577; Exchange Bank of Perry v. Nichols, 1945 OK 292, 164 P.2d 867; Sinclair Oil Gas Company v. Bishop, 1967 OK 167, 441 P.2d 436, 448. The total ownership of Askins Properties, LLC, by James and Debra Askins is undisputed.
Under this rule of law there was embodied in the judgment a finding that Evans told Elliott and Thompson about the prior contract of sale and that the agreements with Elliott and Fane were conditioned upon the prior contract with plaintiffs not being consummated. In Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867, 869, we stated: "To constitute a `bona fide purchaser' three things must exist: (a) a purchase in good faith; (b) for value; and (c) without notice.
Although a mortgagee cannot be compelled to accept payment of a part of the debt and release a corresponding interest in the land described in the mortgage unless he has expressly agreed to do so, as between the mortgagor or his successors in interest and the mortgagee, the mortgagee may accept payment of part of the debt and release a corresponding interest in the land without impairing his lien upon the remainder. 2 Jones on Mortgages, 8th ed, p 750; 59 CJS p 757; 36 Am Jur, Mortgages, Sec 475, p 924; 20 Am Eng Ency of Law 1070; Woodward v. Brown, 119 Calif 283, 51 P. 542, 63 Am St Rep 108; Hargrove v. O'Banion, 5 La App 630; Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867. See, also, Jackson v. Pescia, 124 N.Y.S 735. So, likewise, if a mortgage has been foreclosed and the property purchased by mortgagee at foreclosure sale, although the mortgagor or his successor in interest is not as a general rule entitled to make a partial or proportionate redemption of the property sold the mortgagee may consent to such partial redemption.
But if it be conceded that defendants and not plaintiffs were in possession, the defendants sought affirmative relief and prayed that their title to the land be quieted. That was sufficient to give the court jurisdiction under the rule stated in Concho Washed Sand Co. v. Sallstrom et al., supra, and the cases cited therein. It is next contended that the title to the land acquired by plaintiffs from Phillips Brothers should at this time be decreed to be the title of defendants. Thereunder it is, in effect, asserted that the decree should have been that plaintiffs, though they acquired the legal title to the land, held it as trustee for defendants under the resulting trust doctrine stated in Exchange Bank of Perry v. Nichols, 196 Okla. 283, 164 P.2d 867. The rule relied upon is that wherein the court quotes from Bobier v. Horn, 95 Okla. 8, 222 P. 238, as follows: