another; there is a resulting trust in favour of the person who gave or paid the consideration. 42. Thus it was resolved by the Court of Chancery Anon. 1 Vern. 109. 2 Atk. 71. 150. in 35 Cha. II. that where a man bought land in 2 Vent. 361. another's name, and paid the money, it would be a trust for him, who paid the money, though no deed declaring the trust; for the statute 29 Cha. II. did not extend to trusts raised by operation of law. Dyer v. Dyer, 1 Watk. Cop. 216. 43. Lord Hardwicke has said, that where a pur- 9 Mod. 235. chase is made, the purchase money being paid by one, and the conveyance taken in the name of another, there was a resulting trust for the person who paid the consideration. This was where the whole consideration moved from such person. But he never knew it, where the consideration moved from several persons; for that would introduce all the mischiefs which the statute of frauds was intended to prevent. Suppose several persons agreed to purchase an estate in the name of one, and the purchase money by the deed appeared to be paid by him only; he did not know any case where such persons should come into the Court of Chancery, and say, they paid the purchase money; but it was expected there should be a declaration of trust. 15 Ves. 43. 44. In all cases of this kind the payment of the Finch v. money must be proved by clear and undoubted Finch, evidence; for otherwise a court of equity will not interfere. But evidence of any kind, even parol evidence, is admissible to rebut a resulting trust, and to shew a purchaser's intention, that the estate should belong to the person in whose name the conveyance was taken; upon the same principle that Tit. 11. c. 4. parol evidence is admissible to rebut a resulting use. 45. Thus, in a case in 1693, the counsel contended, Bellasis v. Compton, that where there was an express trust declared, 2 Vern. 294. VOL. I. H h Lamplugh v. Purchase with Trust Money. Ryal v. Ryal, though but by parol, there could be no resulting before the The Court 46. A father purchased lands in the names of his younger son and nephew; but in the conveyance the whole purchase money was mentioned to be paid by the father; who took the profits during his life, and died, leaving the younger son an infant. The eldest son brought his bill against the younger son, and the nephew; insisting that the money being mentioned in the deed to have been paid by the father, this made the defendants trustees for the father; consequently for the plaintiff. It was resolved that parol evidence should be admitted to show the intention of the father, that this conveyance was for the benefit and advancement of the younger son: because it concurred with the conveyance, and was only to rebut a pretended resulting trust. 47. It was formerly doubted, whether in the case of a purchase made by a trustee with trust money, a resulting trust would arise to the person entitled to the money; because that would be to contradict the deed by parol evidence, in direct opposition to the statute of frauds. It has however been since determined, that evidence aliunde is admissible to show that the purchase was made with trust money. And where that circumstance has been clearly proved, a trust will result to the owner of the money. 48. A bill was brought by the legatees of John Ryal against the executrix and heir at law of an Jonathan Ryal, for satisfaction out of his assets, and as against the heir at law, to have satisfaction out of estate purchased by Jonathan Ryal, as the plaintiff insisted, with the assets of John Ryal the original testator. The defendant the executrix admitted, that as to one particular estate, it appeared by her testator's papers, that it was purchased with 2501. of the testator's money: proof was read that Jonathan Ryal, after the testator's death, purchased several estates; and before that time was a poor person, not able to pay for them out of his own money. The counsel for the plaintiff insisted that the heir at law was to be considered as a trustee for them, as far as the estate appeared to be purchased with the assets of John Ryal. On the other side it was contended that money could not be followed into land. Lord Hardwicke said, the Court had been very cautious in fallowing money into land, but had done it in some cases. No one would say but the Court would, if it was actually proved that the money was laid out in land. The doubt with the Court in these cases had been on the proof. There was difficulty in admitting proof; parol proof might let in perjury: but it had always been done, when the fact had been admitted in the answer of the person laying it out. If the executor of John Ryal had been a party, and admitted it, there would have been no doubt; but the admission was by his representative, which, though it did not bind the heir, was ground for inquiry. The way of charging the heir was by considering him as a trustee; as when lands were purchased by one, in the name of another, it was a resulting trust by law, and out of the statute; and upon inquiry a little would do to make it a charge pro tanto. Perry v. 4 Ves. 108. 17 Ves. 173. Conveyance without Consideration. It was referred to the Master to inquire whether the estate was purchased with 2501. of the testator's money, or not. 49. Although a trustee for a purchase should buy land, yet it will not be liable to the trust, unless there are circumstances affording a strong presumption that the land was bought with the trust money. 50. T. Lockyer having a considerable property devised to him, in trust to lay it out in the purchase of lands, bought several real estates, but died without personal assets. A bill was filed by those who would have been entitled to the estates directed to be purchased, praying that the deficiency of the personal estate of Lockyer should be made good out of the real estates which he had purchased. There was no evidence that the lands were purchased with the trust money. It was contended, on behalf of the plaintiffs, that where a man is bound to do an act, and does what may enable him to do it, he shall be taken to have done that, in pursuance of what he was bound to do; and that between representatives. Lord Rosslyn declared that the plaintiffs had no lien on the estates purchased by Lockyer; being creditors by simple contract only. If there had been any ground to presume that the purchase had been made with the trust money, it would have been otherwise. On a bill of review, the decree was affirmed by Lord Eldon. 51. Where the legal estate in lands is conveyed to a stranger, without any consideration, there is a resulting trust to the original owner; in conformity to the old doctrine, that where a feoffment was Tit. 11. c. 4. made without consideration, the use resulted to the feoffor. 1 Ab. Eq. Prec. in Cha. 52. The Duke of Norfolk executed a grant of the Norfolk v. Browne, next avoidance of a church to a clergyman, who was much employed by him: but the grantee knew 381. nothing of it; and being examined in a cause, deposed 80. that he did not purchase it of the duke. It was decreed to be a resulting trust for the grantor; there being no trust declared. 53. In the case of voluntary settlements and wills, 1 Atk. 191. if there is no declaration of the trust of a term, it results to the settlor : otherwise where it is a settlement for a valuable consideration, and in the nature of a contract for the benefit of a wife, or children. declared Lloyd v. 2 Atk. 150. v. Foley, 2 Bro. R. 54. Where the legal estate in lands is conveyed to A Trust a trustee, and a trust is declared, as to part only, no- in Part. thing being said of the rest; what remains undisposed of results to the original owner. 55. Lord Foley devised his estates to trustees for Davidson a term of 99 years, remainder to his eldest son for life, remainder to his first and other sons in tail, re- 203. mainder to his second son in the same manner. The trust of the term for years was to pay off certain scheduled debts, and to make an annual allowance to his two sons for their support. The scheduled debts being stated to be paid; a bill was filed by other creditors of the sons of the testator, against the trustees, praying that the term might be declared to be attendant on the inheritance, and the trustees restrained from setting up the term to defeat any ejectment or other remedy which the plaintiffs might be advised to pursue for recovery of their debts. Lord Thurlow said, the rule of law was, that where the trusts of a term were exhausted, a trust resulted, for want of a further dispositon, to the legal tenants. In his judgement these must be resulting trusts, and Habergham therefore must go to the tenant for life. Hh3 v. Vincent, 2 Ves. Jun. 204. |