2

though presumed in the first instance to be a provision and settlement; therefore, any antecedent or contemporaneous acts of facts may be received, either to rebut or support the presumption,1 and any acts or facts so immediately after the purchase, as to be fairly considered a part of the transaction, may be received for the same purpose. And so the declarations of the real purchaser, either before or at the time of the purchase, may be received to show whether he intended it as an advancement or a trust. Such declarations are received, not as declarations of a trust by parol or otherwise, but as evidence to show what the intention was at the time. They are parts of the transaction, or words accompanying an act.1 The real purchaser, if otherwise competent, may be a witness to state what his objects, purposes, and intentions were in making the purchase and in taking the title in the name of his wife or child. Of course, declarations made by the husband or father after the purchase are incompetent to control the effect of the prior transaction. But such declarations

1 Christy v. Courtenay, 13 Beav. 96; Baylis v. Newton, 2 Vern. 28; Shales v. Shales, 2 Freem. 252; Tucker v. Burrow, 2 Hem. & M. 524; Collinson v. Collinson, 3 De G., M. & G. 409; Murless v. Franklin, 1 Swans. 19; Lloyd v. Read, 1 P. Wms. 607; Taylor v. Alston, cited 2 Cox, 96; Grey v. Grey, 2 Swans. 600; Williams v. Williams, 32 Beav. 370; Redington v. Redington, 3 Ridg. 177; Rawleigh's Case, cited Hard. 497; Prankerd v. Prankerd, 1 S. & S. 1; Swift v. Davis, 8 East, 354, n. (a); Hall v. Hall, 1 Connor & Law. 120; Taylor v. Taylor, 4 Gilm. 303; Slack v. Slack, 26 Miss. 290; Johnson v. Matsdorf, 11 Johns. 91; Butler v. M. Ins. Co. 14 Ala. 777; Dudley v. Bosworth, 10 Humph. 12; Hayes v. Kindersley, 2 Sm. & Gif. 194; Peer v. Peer, 3 Stockt. 432; Persons v. Persons, 25 N. J. Eq. 250.

2 Jeans v. Cooke, 24 Beav. 521; Redington v. Redington, 3 Ridg. 196; Prankerd v. Prankerd, 1 S. & S. 1; Murless v. Franklin, 1 Swans. 17; Swift v. Davis, 8 East, 354, n. (a).

* Devoy v. Devoy, 3 Sm. & Gif. 403; Grey v. Grey, 2 Swans. 594; Kilpin v. Kilpin, 1 M. & K. 520; Sidmouth v. Sidmouth, 2 Beav. 455; Scawen v. Scawen, 1 N. C. C. 65.

Ibid.; Baker v. Leathers, 3 Ind. 558.

5 Devoy v. Devoy, 3 Sm. & Gif. 403; Stone v. Stone, 3 Jur. (N. s.) 708. 6 Tremper v. Burton, 18 Ohio, 418; Christy v. Courtenay, 13 Beav. 96; Williams v. Williams, 32 Beav. 32; Sidmouth v. Sidmouth, 2 Beav. 456;

may be used by the wife or child against the purchaser to show that it was a settlement and not a trust.1 And the after declarations of the nominal grantee may be used against him, but not in his favor.2 But the declarations must be direct and certain, and where possible should be corroborated by other facts and circumstances; for courts will not act upon mere declarations, if they are conflicting, vague, or inconsistent with themselves.3

§ 148. If a father pays the purchase-money, and the wife or child, by fraud, or any wrongful act, and against the intention of the real purchaser, obtains the conveyance in her or its name, the presumption of an advancement would be rebutted, and the presumption of a trust would arise for the father. So if a son pay the purchase-money and the deed is made to his father by mistake, a trust results to the son.5

§ 149. If a purchaser and payer of the money take the conveyance in the name of a wife or child, for the purpose of delaying, hindering, or defrauding his creditors, the conveyance is void, or a trust results which creditors can enforce to the extent of their debts. If, however, the parent was not

Elliot v. Elliot, 2 Ch. Ca. 231; Woodman v. Morrell, 2 Freem. 33; Finch v. Finch, 15 Ves. 51; Birch v. Blagrave, Amb. 266; Skeats v. Skeats, 2 Y. & C. Ch. 9; Gilb. Lex Præt. 271; Murless v. Franklin, 1 Swans. 13; Crabb v. Crabb, 1 M. & K. 519; Prankerd v. Prankerd, 1 S. & S. 1; Hubble v. Osborne, 31 Ind. 249.

455.

'Redington v. Redington, Ridg. 195; Sidmouth v. Sidmouth, 2 Beav.

2 Scawen v. Scawen, 1 N. C. C. 65; Jeans v. Cook, 24 Beav. 521; Sidmouth v. Sidmouth, 2 Beav. 455; Pole v. Pole, 1 Ves. 76; Murless r. Franklin, 1 Swans. 20; Willard v. Willard, 56 Pa. St. 119.

3 Grey v. Grey, 2 Swans. 597; Scawen v. Scawen, 1 N. C. C. 65; Cartwright v. Wise, 14 Ill. 417; Cairns v. Colburn, 104 Mass. 247.

• Peer v. Peer, 3 Stockt. 432; Hall v. Doran, 13 Iowa, 368; Perkins v. Nichols, 11 Allen, 542; Persons v. Persons, 25 N. J. Eq. 250.

5 Fairhurst v. Lewis, 23 Ark. 435.

Christ's Hospital v. Budgin, 2 Vern. 684; Lush v. Wilkinson, 5 Ves.

indebted at the time, subsequent creditors could not defeat the title, nor enforce the trust, unless the settlement or conveyance was made for the purpose of afterwards running in debt and defrauding creditors. In some States, as in Pennsylvania and Massachusetts, an execution against the debtor can be levied directly upon the land in the hands of the trustee, in other States the lands can only be reached in equity.

§ 150. A very common case of a resulting trust is where the owner of both the legal and equitable estate conveys the legal title only, without conveying the equitable interest.2 The general rule in such case is, that wherever it appears, upon a conveyance, devise, or bequest, that it was intended that the grantee, devisee, or legatee should take the legal estate only, the equitable interest, or so much of it as is left undisposed of, will result, if arising out of the settlor's realty, to himself or his heirs, if out of his personal estate, to himself, his executors or administrators. Whether the

384; Townshend v. Westacott, 2 Beav. 340; Stileman v. Ashdown, 2 Atk. 477; Guthrie v. Gardner, 19 Wend. 414; Jencks v. Alexander, 11 Paige, 619; Watson v. Le Row, 6 Barb. 487; Newell v. Morgan, 2 Harr. 225; Bell v. Hallenback, Wright, 751; Edgington v. Williams, ib. 439; Parrish v. Rhodes, ib. 339; Creed v. Lancaster Bank, 1 Ohio St. 1; Demaree v. Driskill, 3 Blackf. 115; Doyle v. Sleeper, 1 Dana, 531; Rucker v. Abell, 8 B. Mon. 566; Crozier v. Young, 3 Mon. 158; Gowing v. Rich, 1 Ired. 553; Croft v. Arthur, 3 Des. 223; Elliott v. Hart, 10 Ala. 348; Abney v. Kingsland, ib. 355; Cutter v. Griswold, Walk. Ch. 437; Kimmel v. McRight, 2 Barr, 38; McCartney v. Bostwick, 32 N. Y. 53.

1 Creed v. Lancaster Bank, 1 Ohio St. 1; Knouff v. Thompson, 16 Pa. St. 357; Dillard v. Dillard, 3 Humph. 41; Cutler v. Tuttle, 19 N. J. Ch. 556.

2 Morice v. Bishop of Durham, 10 Ves. 537; Paice v. Canterbury, 14 Ves. 370.

Lewin on Trusts, 115 (5th ed. Lond.); Levet v. Needham, 2 Vern. 138; Wych v. Packington, 3 Bro. Ch. 44; Sewell v. Denny, 10 Beav. 315; Halford v. Stains, 16 Sim. 488; Barrett v. Buck, 12 Jur. 771; Cooke v. Dealy, 22 Beav. 196; Fletcher v. Ashburner, 1 Bro. Ch. 501; Re Cross's Estate, 1 Sim. (N. s.) 260; Hogan v. Staghorn, 65 N. C. 279.

conveyance was intended to convey the beneficial as well as the legal estate is sometimes a matter of presumption by the court from all the circumstances of the case, and sometimes it is expressed upon the instrument itself in such manner that no doubts can arise. When it is matter of presumption, parol evidence may be received to rebut or sustain the presumption. But where the trust results by force of the written instrument, it cannot be controlled, rebutted, or defeated by parol evidence of any kind.2

§ 151. No general rule can be stated, that will determine when a conveyance will carry with it a beneficial interest, and when it will be construed to create a trust; but the intention is to be gathered in each case from the general purpose and scope of the instrument.3 A conveyance to a wife or child will be presumed to carry a beneficial interest,* but such consideration is only a circumstance of evidence.5

1 Cook v. Hutchinson, 1 Keen, 50; Docksey v. Docksey, 2 Eq. Ca. Ab. 506; 3 Bro. P. C. 39; North v. Crompton, 1 Ch. Ca. 196; 2 Vern. 253; Mallabar v. Mallabar, Cas. t. Talb. 78; Petit v. Smith, 1 P. Wms. 7; Nourse v. Finch, 1 Ves. Jr. 344; Walton v. Walton, 14 Ves. 318; Langham v. Sanford, 17 Ves. 435; Gladding v. Yapp, 5 Mod. 56; Lake v. Lake, 1 Wils. 313; Amb. 126; Trimmer v. Bayne, 7 Ves. 520; Williams v. Jones, 10 Ves. 77; Barnes v. Taylor, 27 N. J. Eq. 265.

2 Langham v. Sanford, 17 Ves. 435, 442; 19 Ves. 643; Rachfield v. Careless, 2 P. Wms. 158; Gladding v. Yapp, 5 Mod. 59; White v. Evans, 4 Ves. 21; Walton v. Walton, 14 Ves. 322; Petit v. Smith, 1 P. Wms. 7; Nourse v. Finch, 1 Ves. Jr. 344; Ralston v. Telfair, 2 Dev. Eq. 255; Hughes v. Evans, 13 Sim. 496; White v. Williams, 3 V. & B. 72; Love v. Gaze, 8 Beav. 472.

* Hill v. Bishop of London, 1 Atk. 620; Walton v. Walton, 14 Ves. 322; Starkey v. Brooks, 1 P. Wms. 391; King v. Dennison, 1 Ves. & B. 279; Ellis v. Selby, 1 M. & K. 298.

* Christ's Hospital v. Budgin, 2 Vern. 683; Jennings v. Selleck, 1 Vern. 467; Grey v. Grey, 2 Swans. 598; Elliott v. Elliott, 2 Ch. Ca. 232; Hayes v. Kingdom, 1 Vern. 33; Baylis v. Newton, 2 Vern. 28; Cook v. Hutchinson, 1 Keen, 42; Cripps v. Jee, 4 Bro. Ch. 472; Rogers v. Rogers, 3 P. Wms. 193; Lloyd v. Spillett, 2 Atk. 566; Robinson v. Taylor, 2 Bro. Ch. 594; Smith v. King, 16 East, 283; Coningham v. Mellish, Pr. Ch. 31.

Huggins v. Yates, 9 Mod. 122; Wych v. Packington, 2 Eq. Ca. Ab. 507; King v. Dennison, 1 Ves. & B. 474.

It has been said, that if a man transfer property to another, it must be presumed that it proceeded from an intention to benefit the other by making the gift and conferring the beneficial interest; but if such intention cannot be inferred consistently with all the circumstances attending the transaction, a trust will result.2 The heir is not to be excluded from a resulting trust upon bare conjecture; there must be positive evidence of a benefit intended to the devisee, and not merely negative evidence that none was intended for the heir; for the beneficial interest results to the heir, not from the intention of the ancestor, but because he has expressed no intention. Thus, a trust may result upon a legacy given to the heir; but the circumstance of being heir, with other circumstances, will be strong evidence that no trust was intended. But in no case will the court permit the grantee to retain the beneficial interest, if there was any mistake on the part of the grantor, or any fraud on the part of the grantee. If the grantor intended a fraud upon the law, there can be no resulting trust; however, even in this case, if the grantee

1 George v. Howard, 7 Price, 651.

2 Custance v. Cunningham, 13 Beav. 363.

Halliday v. Hudson, 3 Ves. 211; Kellett v. Kellett, 3 Dow, 248; Amphlett v. Parke, 2 R. & M. 227; Phillips v. Phillips, 1 M. & K. 661; Salter v. Cavanagh, 1 Dru. & Walsh, 668.

Hopkins v. Hopkins, Cas. t. Talb. 44; Tregonwell v. Sydenham, 3 Dow, 211; Lloyd v. Spillett, 2 Atk. 151; Habergham v. Vincent, 2 Ves. Jr. 225.

Randall v. Bookey, 2 Vern. 425; Pr. Ch. 162; Starkey v. Brooks, 1 P. Wms. 390, overruling North v. Crompton, 1 Ch. Ca. 196; Killett v. Killett, 1 Ball & B. 543; 3 Dow, P. C. 248.

Rogers v. Rogers, 5 P. Wms. 193; Sel. Ch. Ca. 81; Mallabar v. Mallabar, Cas. t. Talb. 78; and other cases above cited.

7 Birch v. Blagrave, Amb. 264; Woodman v. Morrell, 2 Freem. 33; Childers v. Childers, 1 De G. & Jon. 482; Att'y-Gen. v. Poulden, 8 Sim. 472.

Lloyd v. Spillett, 2 Atk. 150; Barn. 388; Hutchins v. Lee, 1 Atk. 488; Young v. Peachy, 2 Atk. 254-257; 2 Vern. 307; Tipton v. Powell, 2 Cold. 119.

• Cottington v. Fletcher, 2 Atk. 156; Chaplin v. Chaplin, 3 P. Wms. 233; Muckleston v. Brown, 6 Ves. 68.