engage in a joint undertaking or partnership, or trade, or speculation, or several purchase an estate and pay equally, but one improves the estate at his own cost,2 equity will construe them to be tenants in common and not joint tenants. In this country, title by joint tenancy is very much reduced in extent, and the incident of survivorship is almost entirely destroyed by statutes, except in the case of trustees, executors, and others, in whom such a tenancy is necessary for the execution of their trusts.8

§ 137. The transaction out of which a trust results may be proved by parol. The statute of frauds extends to and embraces only trusts created or declared by the parties, and does not affect trusts arising by operation of law. Indeed,

lett, 1 Atk. 467; Anon., Carth. 16; Petty v. Styward, 1 Ch. R. 57; Randall v. Phillips, 3 Mason, 378.

1 Lake v. Gibson, 1 Eq. Ca. Ab. 290; 3 P. Wms. 158; York v. Eaton, 2 Freem. 23; Jackson v. Jackson, 9 Ves. 597 n.; Lyster v. Dolland, 1 Ves. Jr. 434; Jeffreys v. Small, 1 Vern. 217; Caines v. Grant, 5 Binn. 119; Duncan v. Forrer, 6 Binn. 193; Sigourney v. Munn, 7 Conn. 11; Overton v. Lacy, 6 Monroe, 13; Deloney v. Hutcheson, 2 Rand. 183; Cuyler v. Bradt, 2 Ca. C. E. 326; Pugh v. Currie, 5 Ala. 446; McAllister v. Montgomery, 3 Hayw. 94; Farley v. Shippen, Wythe, 135. See Appleton v. Boyd, 7 Mass. 131; Kinsley v. Abbott, 19 Me. 430.

2 Lake v. Gibson, 1 Eq. Ca. 291.

8 See 4 Kent, Com. 396 (11th ed.).

Livermore v. Aldrich, 5 Cush. 435; Boyd v. McLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 Johns. Ch. 405; Verplank v. Caines, 1 Johns. Ch. 57; Page v. Page, 8 N. H. 187; Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Gardner Bank v. Wheaton, 8 Greenl. 373; Powell v. Monson & Brim. Manuf. Co. 3 Mason, 347; Elliott v. Armstrong, 3 Blackf. 199; Jennison v. Graves, ib. 441; Blair v. Bass, 4 ib. 550; Snelling v. Utterback, 1 Bibb, 609; Foote v. Bryant, 47 N. Y. 544; Peiffer Lytle, 58 Pa. St. 386; McGinity v. McGinity, 6 Pa. St. 38; Nixon's App. 63 Pa. St. 277; Byers v. Wackman, 16 Ohio, 80, 440; Faris v. Dunn, 7 Bush, 276; Caldwell v. Caldwell, 7 Bush, 515; Morgan v. Clayton, 61 Ill. 35; Knox v. McFarran, 4 Col. 586. Otherwise in Michigan. Groesbeck v. Seeley, 13 Mich. 329; and see Barbin v. Gasford, 15 La. An. 539.

5 Ibid.; Ross v. Hegeman, 2 Edw. Ch. 373; Larkin v. Rhodes, 5 Porter,

such trusts are specially excepted in the statute of frauds of most States. The exception, however, was omitted in the statute of Rhode Island; but Mr. Justice Story held that the omission was immaterial, as such trusts were excepted in the nature of things. It follows that a party setting up a resulting trust may prove by parol the agreements under which the estate was purchased, and he may prove by parol the actual payment of the purchase-money by himself, or in his behalf, although the deed states it to have been paid by the grantee in the conveyance.2 And although the holder of the legal title has fraudulently or by mistake made a declaration that he holds the property for some other person,3 or states it to be for the use of the grantor, and although the trust, and all the circumstances out of which it arises, may be denied under oath in the answer, yet the facts may all be proved by parol in opposition to the answer. In such case 196; Enos v. Hunter, 4 Gil. 211; Smith v. Sackett, 5 Gilm. 544; Foote v. Bryant, 47 N. Y. 544; Black v. Black, 4 Pick. 238; Bryant v. Hendricks, 5 Io. 256; Judd v. Haseley, 22 Io. 428; Ward v. Armstrong, 84 Ill. 151. 1 Hoxie v. Carr, 1 Sum. 187.

2 De Peyster v. Gould, 2 Green, Ch. 474; Dismukes v. Terry, Walk. 197; Peabody v. Tarbell, 2 Cush. 232; Barron v. Barron, 24 Vt. 375; Smith v. Burnham, 3 Sum. 438; Malin v. Malin, 1 Wend. 626; Harder v. Harder, 2 Sandf. Ch. 17; Peirce v. McKeehan, 3 Barr, 136; Lloyd v. Carter, 17 Pa. St. 216; Peebles v. Reading, 8 Serg. & R. 484; Millard v. Hathaway, 27 Cal. 119; Lyford v. Thurston, 16 N. H. 399; Bayles v. Baxter, 22 Cal. 575; Cooper v. Skeele, 14 Io. 578. In Kirk v. Webb, Pr. Ch. 84, the court refused to admit parol evidence to control the recitals of the deed as to the payment of the consideration, and this decision was followed in Heron v. Heron, Pr. Ch. 163; Freem. 248; Skitt v. Whitmore, Freem. 280; Kinder v. Miller, Pr. Ch. 172; Hooper v. Eyles, 2 Vern. 480; Newton v. Preston, Pr. Ch. 103; Cox v. Bateman, 2 Ves. 19; Ambrose v. Ambrose, 1 P. Wms. 321; Deg v. Deg, 2 P. Wms. 414; but the rule has been changed, and the doctrine stated in the text is now established beyond controversy. Bartlett v. Pickersgill, 1 Eden, 515; Lench v. Lench, 10 Ves. 517; Groves v. Groves, 3 Y. & J. 163. See 2 Story, Eq. Jur. § 1201, and notes; Livermore v. Aldrich, 5 Cush. 435.

8 Hanson v. First Presbyterian Church, 1 Stock. 441.

4 Cotton v. Wood, 25 Io. 43.

Cooth v. Jackson, 6 Ves. 39; Buck v. Pike, 2 Fairf. 24; Baker v.

the trust must be clearly alleged in the bill, not only in terms, but all the facts must be set out from which the trust is claimed to result. And the facts in all cases must be proved with great clearness and certainty.2 For this purpose all competent evidence is admissible, as the admissions of the nominal purchaser and grantee in the deed, recitals in the deed and other proper documents, and even circumstantial evidence, as that the means of the nominal purchaser were so limited that it was impossible for him to pay the purchasemoney. But loose and equivocal facts ought not to control

Vining, 30 Me. 121; Page v. Page, 8 N. H. 187; Moore v. Moore, 38 N. H. 382; Boyd v. McLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 Johns. Ch. 405; Swinburne v. Swinburne, 28 N. Y. 568; Snelling v. Utterback, 1 Bibb, 609; Lloyd v. Lynch, 28 Pa. St. 419; Letcher v. Letcher, 4 J. J. Marsh. 590; Miller v. Stokely, 5 Ohio St. 194; Elliott v. Armstrong, 2 Blackf. 198; Jenison v. Graves, ib. 440; Blair v. Bass, 4 ib. 540; Larkins v. Rhodes, 5 Porter, 196; Farringer v. Ramsey, 2 Md. 365; Greer v. Baughman, 13 Md. 257; Ensley v. Ballentine, 4 Humph. 233; Paine v. Wilcox, 16 Wis. 202; Olive v. Dougherty, 3 Io. 371; Vandever v. Freeman, 20 Tex. 333; Pugh v. Bell, 1 J. J. Marsh. 399.

1 Rowell v. Freese, 23 Me. 182; Hickey v. Young, 1 J. J. Marsh. 1; Gascoigne v. Thwing, 1 Vern. 366; Rider v. Kidder, 10 Ves. 364; Groves v. Groves, 3 Y. & J. 163; Halcott v. Morkant, Pr. Ch. 168; Goodright v. Hodges, 1 Watk. Corp. 229; Willis v. Willis, 2 Atk. 71.

2 Ibid.; Slocumb v. Marshall, 2 Wash. C. C. 397; Newton v. Preston, Pr. Ch. 103; Wright v. King, Harr. Ch. 12; Enos v. Hunter, 4 Gilm. 211; Carey v. Callan, 6 B. Mon. 44; O'Hara v. O'Neil, 2 Eq. Ca. Ab. 475; Cottington v. Fletcher, 2 Atk. 155; Ambrose v. Ambrose, 1 P. Wms. 321; Hyden v. Hyden, 6 Baxter (Tenn.), 406; Thomas v. Sandford, 49 Md. 181. As to what facts are competent and necessary to be proved, see Hunter v. Marlboro', 2 Wood. & M. 168; Morey v. Herrick, 18 Pa. St. 128; Blyholder v. Gibson, 18 Pa. St. 134; Farringer v. Ramsey, 4 Md. Ch. 33; Malin v. Malin, 1 Wend. 626; Harder v. Harder, 1 Sandf. 17; Snelling v. Utterback, 1 Bibb, 609; Freeman v. Kelly, 1 Hoff. 90; Baker v. Vining, 30 Me. 128; Clarke v. Quackenboss, 27 Ill. 260; Nelson v. Warrall, 20 Io. 409. White v. Weldon, 4 Nev. 280; Stall v. Cincinnati, 16 Ohio St. 169; Browne v. Stamp, 21 Md. 328; Holder v. Nunnelley, 2 Cold. 288; Childs v. Gramold, 19 Io. 362; Cutler v. Tuttle, 19 N. J. Ch. 560; Parmlee v. Sloan, 37 Ind. 469; Phelps v. Seeley, 22 Gratt. 573; Shepard v. Pratt, 32 Io. 296.

Willis v. Willis, 2 Atk. 71; Wilkins v.

Stevens, 1 Y. & C. Ch.

the evidence of deeds; and two witnesses, or one witness with corroborating circumstances, are required to control an answer under oath. And proof of mere admissions of one that he purchased for another, without proof of some previous arrangement or advance of money by such other, is insufficient to create a resulting trust.1

§ 138. It has been stated by some writers that after the death of the supposed nominal purchaser, parol proof alone could not be admitted to control the express declaration of the deed; but the cases relied upon are the cases before cited to the point that parol proof is inadmissible, both before and after the death of the supposed nominal purchaser. These cases are overruled; and it would seem upon principle that the death of the nominal purchaser cannot affect the admissibility of parol testimony, whatever effect it may have upon its weight. Analogous to this matter is the question whether trust money can be followed into land by parol evidence; and it is clearly established that it may, on the Ca. 431; Lench v. Lench, 10 Ves. 518; Benger v. Drew, 1 P. Wms. 780; Strimpfler v. Roberts, 18 Pa. St. 283; Baumgartner v. Guessfeld, 38 Mo. 36; Brown v. Petney, 3 Ill. 468; Farrell v. Lloyd, 69 Pa. St. 239; Sayre v. Frederick, 1 C. E. Green, 205; Gascoigne v. Thwing, 1 Vroom, 366; Graves v. Graves, 3 Y. & J. 170; Mitchell v. O'Neil, 4 Nev. 504.

1 Sidle v. Walter, 5 Watts, 389; and see Sample v. Coulson, 9 W. & S. 62. The admissions of a trustee that he purchased certain property with the trust fund is competent evidence to raise a resulting trust for the cestui que trust in that property. Harrisburg Bank v. Tyler, 3 Watts & S. 373.

2 Sanders on Uses and Trusts, 259; note to Lloyd v. Spillett, 2 Atk. 150; Roberts on Statute of Frauds, 99.

8 Lewin on Trusts, 138 (5th Lond. ed.), 2 Mad. Ch. Pr. 141; Sugd. V. & P. 136 (9th ed.); Lench v. Lench, 10 Ves. 517; 2 Story, Eq. Jur. § 1201, n.; Livermore v. Aldrich, 5 Cush. 435; Unitarian So. v. Woodbury, 14 Me. 281; De Peyster v. Gould, 2 Green, Ch. 474; Harrisburg Bank v. Tyler, 3 W. & S. 373; Harder v. Harder, 2 Sand. Ch. 17; McCammon v. Petitt, 3 Sneed, 242; Fausler v. Jones, 7 Ind. 277; Neill v. Keese, 5 Tex. 23; Freeman v. Kelly, 1 Hoff. 90.

ground that a purchase with trust money is virtually a purchase paid for by the cestui que trust, and such a purchase is a trust by operation of law, and not within the statute of frauds. And if a trustee pay for property out of the trust fund, and take the deed in the name of another, the trust results to the cestui que trust, and not to the trustee.2

§ 139. It follows that as a resulting trust may be shown by parol proof, as a presumption of law arising out of the transaction, so the presumption may be rebutted by parol proof, showing that no trust was intended by the parties, and that it was the intention to confer the beneficial interest upon the supposed nominal purchaser. As the resulting trust is mere matter of equitable presumption, it may be rebutted by facts that negative the presumption; and whatever facts appear tending to prove that it was intended that the nominal purchaser should take the beneficial interest as well as the legal title, negatives the presumption. The presumption may be negatived as to part of the estate,

1 Lench v. Lench, 10 Ves. 517; Trench v. Harrison, 17 Sim. 111; ante, §§ 127, 128.

2 Russell v. Allen, 10 Paige, 249; Wynn v. Sharer, 23 Ind. 573.

Rider v. Kidder, 10 Ves. 364; Benbow v. Townsend, 1 M. & K. 558; Goodright v. Hodges, 1 Watk. Cop. 227; Lofft, 230; Rundle v. Rundle. 2 Vern. 252; Taylor v. Taylor, 1 Atk. 386; Redington v. Redington, 3 Ridg. 106; Beecher v. Major, 2 Drew. & Sm. 431; Garrick v. Taylor, 29 Beav. 79; 4 De G., F. & J. 159; Bellasis v. Compton, 2 Vern. 294; Maddison v. Andrew, 1 Ves. 58; Baker v. Vining, 30 Me. 126; Page v. Page, 8 N. H. 189; Botsford v. Burr, 2 Johns. Ch. 405; White v. Carpenter, 2 Paige, 217; Jackson v. Feller, 2 Wend. 465; Steere v. Steere, Johns. Ch. 18; Creed v. Lancaster Bank, 1 Ohio St. 1; Sewell v. Baxter, 2 Md. Ch. 448; Hays v. Hollis, 8 Gill, 369; McGuire v. McGowen, 4 Des. 487; Elliott v. Armstrong, 2 Blackf. 199; Philips v. Crammond, 2 Wash. C. C. 441; Myers v. Myers, 1 Casey, 100; Squire v. Harder, 1 Paige, 494; Ledge v. Morse, 16 Johns. 199; Smith v. Howell, 3 Stockt. 122; Bayles v. Baxter, 22 Cal. 375; McCue v. Gallagher, 23 Cal. 51; Byers v. Danley, 27 Ark. 77; Hays v. Quay, 68 Pa. St. 263.