and prevail in part.1 The presumption, however, is in favor of the trust resulting to the party paying the consideration, and the burden of proof is upon the mere nominal purchaser to show that he was intended to have some beneficial interest.2

§ 140. And when a clear understanding is had at the time the purchase is made, the money paid, and the deed taken, by which understanding the nominal purchaser was to have both the legal and the beneficial interest, it is incompetent for the person who paid the purchase-money to put a different construction upon the transaction at a subsequent time, and claim a resulting trust in the estate contrary to the understanding and intention at the time. And if the nominal purchaser, under such circumstances, should afterwards agree to hold in trust for, or to execute a conveyance to the person who paid the money, courts would not enforce the agreement, if it was without a new consideration or voluntary. So if the trust is declared in writing at the time of the transaction, there can be no resulting trust, as the one precludes the other; 5 or if the nominal purchaser stipulates for something out of the transaction inconsistent with the trust.6

§ 141. Courts will not enforce a resulting trust after a great lapse of time, or laches on the part of the supposed cestui que trust, especially when it appears that the supposed

1 Benbow v. Townsend, 1 M. & K. 506; Rider v. Kidder, 10 Ves. 360;

Lane v. Dighton, Amb. 409; Pinney v. Fellows, 15 Vt. 525.

2 Dudley v. Bosworth, 10 Humph. 12; 2 Sugd. V. & P. 139 (9th ed.).

8 Groves v. Groves, 3 Y. & J. 172; Hunt v. Moore, 6 Cush. 1; White

v. Sheldon, 4 Nev. 280; Robles v. Clarke, 25 Cal. 317.

4 Ibid.

5 Clark v. Burnham, 2 Story, 1; Anstice v. Brown, 6 Paige, 448; Leggett v. Dubois, 5 Paige, 114; Alexander v. Warrance, 17 Mo. 230; Mercer v. Stark, 1 Sm. & M. 479; Dennison v. Goehring, 7 Barr, 175.

• Dow v. Jewell, 21 N. H. 470.

nominal purchaser has occupied and enjoyed the estate.1 But if the trust is admitted, and there has been no adverse holding, lapse of time is no bar.2

§ 142. The legislature of New York has abolished trusts resulting from the payment of the consideration by one and the taking the title in the name of another, except in cases where the nominal grantee has taken the deed without the knowledge and consent of the party paying the money, or except the purchase is made with another's money in violation of some duty or trust. But the statute saves the rights of creditors of the party paying the purchase-money and taking the title in the name of another. If such a purchase is a fraud upon creditors, they may enforce the trust in equity, though the original purchaser and payer of the money would

1 Delane v. Delane, 7 Bro. P. C. 279; Clegg v. Edmonson, 8 De G., M. & G. 787; Groves v. Groves, 3 Y. & J. 172; Peebles v. Reading, 8 Ser. & R. 484; Graham v. Donaldson, 5 Watts, 471; Haines v. O'Conner, 10 Watts, 315; Lewis v. Robinson, ib. 338; Buckford v. Wade, 17 Ves. 97; Robertson v. Macklin, 3 Hayw. 70; Strimpfler v. Roberts, 18 Pa. St. 283; Sunderland v. Sunderland, 19 Io. 325; Douglass v. Lucas, 63 Pa. St. 11; Best v. Campbell, 62 Pa. St. 478; Brown v. Guthrie, 27 Texas, 610; Hall v. Doran, 13 Io. 368; Trafford v. Wilkinson, 3 Tenn. Ch. 701; Newman v. Early, ib. 714. And see Miller v. Blose, 30 Gratt. (Va.) 744; Jennings v. Shacklett, ib. 765; King v. Purdee, 6 Otto, 90; Midmer v. Midmer, 26 N. J. Eq. 299; Smith v. Patton, 12 W. Va. 541.

2 Dow v. Jewell, 18 N. H. 340.

3 Linsley v. Sinclair, 24 Mich. 380.

4 Rev. Stat. 1859, part II. (Vol. III. p. 15), c. 1, art. 6, §§ 52, 53, 57; Bodine v. Edwards, 10 Paige, 504; Brewster v. Power, 10 Paige, 562; Willink v. Vanderveer, 1 Barb. 599; Norton v. Storer, 8 Paige, 222; Reid v. Fitch, 11 Barb. 399; Lounsbury v. Purdy, 16 Barb. 376; 18 N. Y. 515; Jencks v. Alexander, 11 Paige, 619; Watson v. Le Row, 6 Barb. 481; Russell v. Allen, 10 Paige, 250 Siemon v. Schurck, 29 N. Y. 598; Swinburne v. Swinburne, 28 N. Y. 568; Stover v. Flock, 21 Barb. 162; Safford v. Hind, 39 Barb. 625; Buffalo R. R. Co. v. Lampson, 47 Barb. 533; Gilbert v. Gilbert, 1 Keyes (N. Y.), 159. See the comments of Church, Ch. J., upon this last case in Foote v. Bryant, 47 N. Y. 561; and see Gilbert v. Gilbert, 2 N. Y. Dec. 256; Farrell v. Lloyd, 69 Pa. St. 239.

have no remedy;1 but if the debt is barred by a discharge in bankruptcy, the creditor's lien is gone.2 In Kentucky, trusts resulting from the payment of the money and the purchase in the name of another are abolished, but an action is given for the recovery of the money paid.3 In Massachusetts, the creditors of such a purchaser, taking the title in the name of a third person, may levy their execution upon the land, in the same manner as if the purchaser had taken the title directly to himself. And so in New Hampshire.5 The statute of New York has been strictly construed, and therefore if A. makes a purchase, and pays the money, and takes the title in the name of B., upon a parol trust for C., it is not within the statute; and C. may enforce the trust as against B.6 Statutes similar to the statute of New York have been passed in Michigan and Wisconsin. In Louisiana, express trusts have been abolished; but trusts arising from the nature of transactions, or by implication of law, are still enforced by the courts.9

§ 143. As before stated, if a purchaser of an estate pays the consideration money, and takes the title in the name of a stranger, the presumption is that he intended some benefit

1 Ibid.; Jackson v. Forrest, 2 Barb. Ch. 576; McCartney v. Bostwick, 32 N. Y. 53.

3 Ocean Nat. Bank v. Alcott, 46 N. Y. 12.

3 Martin v. Martin, 5 Bush, 47; as to the rule in Minnesota, see Durpee v. Pavitt, 14 Minn. 424.

4 Gen. Stat. 1860, c. 103, § 1; Stat. 1844, c. 107; Foster v. Duranl, 2 Gray, 538, amending the law as ruled in How v. Bishop, 3 Met. 26; Clark v. Chamberlain, 12 Allen, 257.

Hutchins v. Heywood, 50 N. H. 591.

Siemon v. Austin, 33 Barb. 9; Siemon v. Schurch, 29 N. Y. 598; Foote v. Bryant, 44 N. Y. 544.

7 R. S. 1846, c. 63, § 4; Groesbeck v. Seeley, 13 Mich. 329; Fisher v. Fobes, 22 Mich. 454.

8 R. S. 1858, c. 84, §§ 7-9.

Gaines v. Chew, 2 How. 619; McDonough's Ex'rs v. Murdock, 15 How. 367.

for himself, and a resulting trust arises for him; but if the purchaser take the conveyance in the name of a wife or child, or other person, for whom he is under some natural, moral, or legal obligation to provide, the presumption of a resulting trust is rebutted, and the contrary presumption arises, that the purchase and conveyance were intended to be an advancement for the nominal purchaser.2 The transaction will be regarded prima facie as a settlement upon the nominal grantee, and if the payer of the money claims a resulting trust he must rebut this presumption by proper evidence.3 Lord Ch. B. Eyre stated the doctrine thus: "The circumstance of one or more of the nominees being a child or children of the purchaser is held to operate by rebutting the resulting

1 Ante, § 126.

2 Murless v. Franklin, 1 Swans. 17; Grey v. Grey, 2 Swans. 597; Finch, 340; Dyer v. Dyer, 2 Cox, 93; 1 Watk. Cop. 219; Redington v. Redington, 2 Ridg. 176; Elliot v. Elliot, 2 Ch. Ca. 231; Sidmouth v. Sidmouth, 2 Beav. 454; Thomas v. Chicago, 55 Ill. 403; Graff v. Rohrer, 35 Md. 327; Christy v. Courtenay, 13 Beav. 96; Lamplugh v. Lamplugh, 1 P. Wms. 111; Goodright v. Hodges, 1 Watk. Cop. 228; Pole v. Pole, 1 Ves. 76; Woodman v. Morrell, 2 Freem. 33; Finch v. Finch, 15 Ves. 50; Mumma v. Mumma, 2 Vern. 19; Skeats v. Skeats, 2 N. C. C. 9; Wait v. Day, 4 Denio, 439; Wilton v. Devine, 20 Barb. 9; Jackson v. Matsdorf, 11 Johns. 91; Prosers v. McIntire, 5 Barb. 424; Partridge v. Havens, 10 Paige, 678; Guthrie v. Gardner, 19 Wend. 414; Reid v. Fitch, 11 Barb. 399; Page v. Page, 8 N. H. 187; Astreen v. Flanagan, 3 Edw. Ch. 279; Bodine v. Edwards, ib. 504; Dennison v. Goehring, 7 Barr, 182 n.; Knouff v. Thompson, 16 Pa. St. 357; Fleming v. Donahoe, 5 Ohio, 255; Tremper v. Burton, 18 Ohio, 418; Stanley v. Brannon, 6 Blackf. 193; Whitten v. Whitten, 3 Cush. 194; Fatheree v. Fletcher, 31 Miss. 265; Welton v. Devine, 20 Barb. 9; Butler v. Ins. Co. 14 Ala. 777; Douglass v. Price, 4 Rich. Eq. 322; Taylor v. James, 4 Des. 6; Thompson v. Thompson, 1 Yerg. 97; Dudley v. Bosworth, 10 Humph. 12; Alexander v. Warrance, 2 Bennett, 230; Cartwright v. Wise, 14 Ill. 417; Shepherd v. White, 10 Tex. 72; Baker v. Leathers, 3 Ind. 557; Guthrie v. Gardner, 19 Wend. 414; Hill v. Pine River Bank, 45 N. H. 300; Shaw v. Read, 47 Pa. St. 96; Dickenson v. Davis, 44 N. H. 647; Miller v. Blose, 30 Gratt. (Va.) 744.

3 Jackson v. Matsdorf, 11 Johns. 91; Shepherd v. White, 10 Texas, 72; Proseus v. McIntire, 5 Barb. 425; Butler v. Ins. Co. 14 Ala. 777; Hill v. Pine River Bank, 45 N. H. 300.

trust; and it has been determined in so many cases that the nominee being a child shall have such operation, as a circumstance of evidence, that it would be disturbing landmarks if we suffered either of these propositions to be called into question; viz., that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. It would have been a more simple doctrine, if children had been considered as purchasers for valuable consideration. That way of considering it would have shut out all the circumstances of evidence which have found their way into the cases, and would have prevented some very nice distinctions, not very easily understood. Considering it as a circumstance of evidence, there must, of course, be evidence admitted on the other side. Thus the question is resolved into one of intent, which was getting into a very wide sea, without very certain guides." And Lord Nottingham pointed out, that the law of resulting trusts, in this respect, was analogous to uses before the statute, " for the feoffment of a stranger, before the statute, without consideration, raised a use in the feoffor; but a feoffment by a father to a son, without other consideration, raised no use by implication in the father, for the consideration of blood settled the use in the son, and made it an advancement." 2

§ 144. This rule embraces all persons for whom the purchaser is under any obligation, legal or moral, to provide. It embraces daughters as well as sons, although a distinction

3

1 Dyer v. Dyer, 2 Cox, 94. Where land is purchased with money of the wife and the deed taken in name of the husband, it is a question of fact and intention whether the husband reduced the money to possession before paying it over for the deed. Moulton v. Haley, 57 N. H. 184. 2 Grey v. Grey, 2 Swans. 598.

3 Lady Gorge's Case, Cro. Car. 550; 2 Swans. 600; Clarke v. Danvers, 1 Ch. Ca. 310; Woodman v. Morrell, 2 Freem. 33; Jennings v. Selleck, 1 Vern. 467; Bedwell v. Froome, 2 Cox, 97; Back v. Andrew, 2 Vern. 120; Baker v. Leathers, 3 Ind. 558; Murphy v. Nathans, 46 Pa. St. 508. Astreen v. Flanagan, 3 Edw. Ch. 279, was the case of an adopted daughter.