bution towards a purchase is not sufficient; but the person claiming a resulting trust must show that he paid some specific sum, for some distinct interest in, or aliquot part of, the estate, as for a specific share, as one-half or one-quarter, or other particular fraction of the whole; or for a particular interest, as for an estate for life or years, or in remainder in the whole estate. Where two contribute funds and the proportions do not appear, the presumption is that the proportions are equal.2

§ 133. The trust must result, if at all, at the instant the deed is taken, and the legal title vests in the grantee. No oral agreements, and no payments, before or after the title is taken, will create a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from the transaction itself. Thus, if two agree to purchase, 106; Bogert v. Perry, 17 Johns. 351; Jackson v. Bateman, 2 Wend. 570; Cloud v. Ivie, 28 Mo. 578; Baumgartner v. Guessfeld, 38 Mo. 36; Union College v. Wheeler, 5 Lansing, 160; McDonald v. McDonald, 24 Ind. 68; Kelley v. Jenness, 50 Me. 455; Dow v. Jewell, 18 N. H. 340; Frederick v. Haas, 5 Nev. 389; Case v. Codding, 38 Cal. 191; Clark v. Clark, 43 Vt. 685.

1 McGowan v. McGowan, 14 Gray, 119; Buck v. Warren, ib. 122, n.; Baker v. Vining, 30 Me. 121; Sayre v. Townsends, 15 Wend. 647; White v. Carpenter, 2 Paige, 217; Perry v. McHenry, 13 Ill. 227; Crop v. Norton, 2 Atk. 74; Reynolds v. Morris, 17 Ohio St. 510; Cutler v. Tuttle, 19 N. J. Ch. 561; 1 Lead. Ca. Eq. 276; Billings v. Clinton, 6 Rich. ( S. C.) 90; Olcott v. Bynum, 17 Wall. 44.

2 Shoemaker v. Smith, 11 Humph. 81.

Frickett v. Durham, 109 Mass. 422; Rogers v. Murray, 3 Paige, 390; Dudley v. Batchelder, 53 Me. 403; Connor v. Lewis, 16 Me. 275; Pinnoch v. Clough, 16 Vt. 500; Taliaferro v. Taliaferro, 6 Ala. 404; McGowan v. McGowan, 14 Gray, 119; Barnard v. Jewett, 97 Mass. 87; Freeman v. Kelly, 1 Hoff. 90; Foster v. Trustees, &c., 3 Ala. 302; Forsyth v. Clark, 3 Wend. 637; Steere v. Steere, 5 Johns. Ch. 1; Botsford v. Burr, 2 Johns. Ch. 408; Jackson v. Moore, 6 Cow. 706; White v. Carpenter, 2 Paige, 218; Page v. Page, 8 N. H. 187; Buck v. Pike, 2 Fairf. 9; Graves v. Dugan, 6 Dana, 331; Wallace v. Marshall, 9 B. Mon. 148; Gee v. Gee, 2 Sneed, 395; Kelly v. Johnson, 28 Mo. 249; Williard v. Williard, 56 Pa. St. 119; Nixon's App. 63 Pa. St. 279; Cutler v. Tuttle, 19 N. J. Ch. 561; Sheldon

and one furnishes all the money and takes the title to himself, no trust results to the other. And so if two agree to purchase, and one pays the whole consideration money, and the title is taken to the two, no trust results to the one who paid the whole, he can only enforce repayment of one-half the consideration money. There must be an actual payment from a man's own money, or what is equivalent to payment from his own money, to create a resulting trust. And the money must be advanced and paid in the character of a purchaser; for if one pay the purchase-money by way of loan for another, and the conveyance is taken to the other, no trust will result to the one who thus pays the purchase-money; on the other hand, if one should advance the purchase-money and take the title to himself, but should do this wholly upon

v. Harding, 44 Ill. 68; Kendall v. Mann, 11 Allen, 15; Davis v. Wetherell, 11 Allen, 19; Gerry v. Stimson, 60 Me. 186; Wheeler v. Kirtland, 23 N. J. Eq. 13; Tunnard v. Littell, 23 N. J. Eq. 264; Forsyth v. Clark, 3 Wend. 657; Davis v. Wetherell, 11 Allen, 19, n; Miller v. Blose, 30 Gratt. (Va.) 744; Billings v. Clinton, 6 Rich. (S. C.) 90; Du Val v. Marshall, 3 Ark. 230; Rhea v. Tucker, 56 Ala. 450; McClure v. Doak, 6 Baxter (Tenn.), 364; Buck v. Swasey, 35 Me. 51.

1 Brooks v. Fowle, 14 N. H. 248; Tebbetts v. Tilton, 31 N. H. 273; Edwards v. Edwards, 39 Pa. St. 369; Coppage v. Barnett, 34 Miss. 621; Cook v. Bronaugh, 8 Eng. 183; Fowke v. Slaughter, 3 A. K. Marsh. 56. 2 2 Sugd. V. & P. 575 (13th ed.); Butler v. Rutledge, 2 Cold. 4. 8 Wheeler v. Kirtland, 23 N. J. Eq. 13; Tunnard v. Littell, 23 N. J. Eq. 264; Roberts v. Ware, 40 Cal. 634; Page v. Page, 8 N. H. 187; Gomez v. Tradesman's Bank, 4 Sandf. S. C. 106; Coates v. Woodworth, 13 Ill. 634; Beck v. Graybill, 4 Casey, 66; Reeve v. Strawn, 14 Ill. 94; Ferguson v. Sutphen, 3 Gil. 547; Lounsbury v. Purdy, 16 Barb. 380; Runnells v. Jackson, 1 How. (Miss.) 358; Harrisburg Bank v. Tyler, 3 Watts & S. 373; Morey v. Herrick, 18 Pa. St. 123; Smith v. Sackett, 5 Gilm. 534; Kelly v. Johnson, 28 Mo. 249; Botsford v. Burr, 2 Johns. Ch. 405; Getman v. Getman, 1 Barb. Ch. 499; Wright v. King, Harr. Ch. 12; Bernard v. Bongard, Harr. Ch. 130; Dudley v. Batchelder, 53 Me. 403; Russell v. Allen, 10 Paige, 249; Kirkpatrick v. McDonald, 1 Jones, 393; Smith v. Burnham, 3 Sumner, 435; White v. Sheldon, 4 Nev. 280; Kendall v. Mann, 11 Allen, 15.

Bartlett v. Pickersgill, 1 Eden, 516; Crop v. Norton, 9 Mod. 235; White v. Carpenter, 2 Paige, 217; Henderson v. Hoke, 1 Dev. & Bat. Ch. 119; Dudley v. Batchelder, 53 Me. 403; Gibson v. Toole, 40 Miss. 788.

the account and credit of the other, he would hold the estate upon a resulting trust for the other.1

§ 134. A trust results from the acts, and not from the agreements, of the parties, or rather from the acts accompanied by the agreements; but no trust can be set up by mere parol agreements, or, as has been said, no trust results from the breach of a mere parol contract; as, if one agrees to purchase land and give another an interest in it, and he purchases and pays his own money, and takes the title in his own name, no trust can result.2 And so if a party makes no payment, and none is made on his account, either actually or constructively, he cannot claim a resulting trust. As where a father made a deed to a son-in-law, in consideration of love and affection for his daughter, no trust resulted.

And so a

1 Aveling v. Knipe, 19 Ves. 441; Page v. Page, 8 N. H. 187; Runnells v. Jackson, 1 How. (Miss.) 358; Lounsbury v. Purdy, 18 N. Y. 515; 16 Barb. 380; Buck v. Pike, 2 Fairf. 9; Morey v. Herrick, 18 Pa. St. 123; Kelly v. Johnson, 28 Mo. 249; Cutler v. Tuttle, 19 N. J. Ch. 562; Dryden v. Hanaway, 3 Md. 254; Fleming v. McHale, 47 Ill. 282; Honore v. Hutchins, 8 Bush, 687; Stucky v. Stucky, 30 N. J. Eq. 546.

2 Kisler v. Kisler, 2 Watts, 323; Williard v. Williard, 56 Pa. St. 119; Loomis v. Loomis, 60 Barb. 22; Stover v. Flack, 41 Barb. 162; Thorner v. Thorner, 18 Ind. 462; Rogers v. Simmons, 55 Ill. 66; Loomis v. Loomis, 28 Ill. 454; Green v. Cook, 2 Ill. 196; Duffy v. Masterson, 44 N. Y. 557; Whetham v. Clyde, 1 (Pa.) Leg. Gaz. R. 55. But see Hidden v. Jordan, 21 Cal. 92; Green v. Drummond, 3 Md. 71; Meason v. Kaine, 63 Pa. St. 335; Smith v. Hollenback, 53 Ill. 223; Lantry v. Lantry, 51 Ill. 451. A trust resulting from the acts of the parties will not be converted into an express trust by the agreement of the parties, that is, it will not be any the less a resulting trust, and it will not be within the statute of frauds. Cotton v. Wood, 25 Io. 43.

* Jackson v. Ringland, 4 Watts & S. 149; Botsford v. Burr, 2 Johns. Ch. 408; Lathrop v. Hoyt, 7 Barb. 60; Dorsey v. Clark, 4 Har. & J. 551; Smith v. Smith, 3 Casey, 180; Fischili v. Dumaresly, 3 Marsh. 23; Sharp v. Long, 4 Casey, 434; Thompson v. Branch, Meigs, 390; Walker v. Brungard, 13 S. & M. 723; Ensley v. Ballentine, 4 Humph. 233; Lynn v. Lynn, 5 Gil. 602; Sample v. Coulson, 9 Watts & S. 62; Peebles v. Reading, 8 Ser. & R. 484.

4 Thompson v. Thompson, 18 Ohio St. 73.

mere parol declaration by one that he is buying land for another is not sufficient to establish a resulting trust; there must be some proof of an actual or constructive payment by the person claiming such a trust.1

§ 135. Again, parol proof cannot be received to establish a resulting trust in lands purchased by an agent and paid for by his own funds, no money of the principal being used for the payment; for the relation of principal and agent depends upon the agreement existing between them, and the trust in such a case must arise from the agreement, and not from the transaction, and where a trust arises from an agreement, it is within the statute of frauds, and must be in writing. This rule is so inflexible, that though the agent may be indicted, and convicted of perjury in denying his character as agent in his answer under oath, the court cannot decree and establish the trust. But if an agent invest his principal's money in real estate without his knowledge, or if, investing the money with his knowledge, he take the deed in his own name without his consent, or take a deed in a form contrary to the 1 Ibid.; Kisler v. Kisler, 2 Watts, 323; Williard v. Williard, 56 Pa. St. 119.

2 Kennedy v. Keating, 34 Mo. 25; Woodhull v. Osborne, 2 Edw. Ch. 615; Lathrop v. Hoyt, 7 Barb. 60; 2 Story, Eq. Jur. § 1201 a; Bartlett v. Pickersgill, 1 Ed. 515; 4 Burr. 22; 1 Cox, 15; 4 East, 577; Rastel v. Hutchinson, 1 Dick. 44; Lamas v. Bayly, 2 Vern. 627; Atkins v. Rowe, Mose. 39; O'Hara v. O'Neil, 2 Bro. P. C. 39; Jackman v. Ringland, 4 Watts & S. 149; Peebles v. Reading, 8 Ser. & R. 492; Pinnock v. Clough, 16 Vt. 507; Flagg v. Mann, 2 Sum. 546; Walker v. Brungard, 13 Sm. & M. 765; Taliaferro v. Taliaferro, 6 Ala. 406; Moore v. Green, 3 B. Mon. 407; Fowke v. Slaughter, 3 A. K. Marsh. 57; Dorsey v. Clarke, 4 Har. & J. 551; Pearson v. East, 36 Ind. 28; Minot v. Mitchell, 30 Ind. 228; Arnold v. Cord, 16 Ind. 177; Graves v. Ward, 2 Duv. 301; Heacock v. Coatesworth, Clarke, 84; Burden v. Sheridan, 36 Iowa, 125; Nestal v. Schmid, 29 N. J. Eq. 460. But where an attorney purchased property sold upon an execution in favor of his client at a grossly inadequate price, it was held that he was a trustee for his principal. Howell v. Baker, 4 Johns. Ch. 118. See Wade v. Pettibone, 11 Ohio, 57; 14 Ohio, 557.

3 Bartlett v. Pickersgill, 1 Ed. 515; King v. Boston, 4 East, 572.

understanding, there will be a resulting trust.

But if one

standing in no fiduciary relation obtains another's property wrongfully and invests it in land in his own name, or if a clerk appropriates his master's money and buys real estate in his own name, there is no resulting trust.2

§ 136. In England, if two persons join in a purchase and contribute equally, and take the title in their own names, there is no reason to presume a resulting trust, and the two are joint tenants, the survivor taking the whole jure accrescendi. And so if two contract for a purchase to them and their heirs, paying equal proportions, and one dies, the court will order a specific performance by a conveyance to the survivor alone. But the court lays hold of every circumstance to defeat the joint tenancy and convert it into a tenancy in common. Thus, where two tenants in common of a joint mortgage term purchase the equity of redemption, or several

6

1 Day v. Roth, 18 N. Y. 448; Bridenbecker v. Lowell, 32 Barb. 9; Pugh v. Pugh, 9 Ind. 132; Rothwell v. Dewees, 2 Black, 613; Bruce v. Ronly, 18 Ill. 67; Follansbe v. Kilbreth, 17 Ill. 522; Squire's App. 70 Pa. St. 268; Seichrist's App. 16 P. F. Smith, 237. So if he take the deed in his wife's name a knowledge by the principal that the deed is so made will not affect the trust. Bostleman v. Bostleman and wife, 24 N. J. Eq. 103. 2 Ensley v. Ballentine, 4 Humph. 233; Campbell v. Drake, 4 Ired. Eq. 94. But where A. embezzled B.'s money and invested it in stock in the name of C., a mere volunteer, a resulting trust was enforced against C. in favor of B. Bank of America v. Pollock, 4 Edw. Ch. 415; and see Pascoag Bank v. Hunt, 3 Edw. 215; ante, § 128. See also Newton v. Porter, 5 Lansing, 417.

Robinson v. Preston, 4 K. & J. 505; Bone v. Pollard, 24 Beav. 288; Moyse v. Gyles, 2 Vern. 385; Hayes v. Kingdome, 1 Vern. 33; York v. Eaton, 2 Freem. 23; Aveling v. Knipe, 19 Ves. 441; Rigden v. Vallier, 3 Atk. 735; Lake v. Gibson, 1 Eq. Ca. Ab. 291; Anon., Carth. 15; Rea v. Williams, V. & P. (11th ed.); Thicknesse v. Vernon, 2 Freem. 84.

4 Aveling v. Knipe, 19 Ves. 441.

5 Robinson v. Preston, 4 K. & J. 505; Tompkins v. Mitchell, 2 Rand. 428; Brothers v. Porter, 6 B. Mon. 106; Barribeau v. Brant, 17 How. 43. • Edwards v. Fashion, Pr. Ch. 332; Morly v. Bird, 3 Ves. 631; Rigden v. Vallier, 3 Atk. 734; Vickers v. Cowell, 1 Beav. 629; Partridge v. Paw