course results to the next of kin or heirs. But a different rule is applied at common law to gifts of real estate. If real estate was bequeathed upon trusts that were void, or that failed, the real estate did not pass to the residuary devisee, but resulted to the heir-at-law, for the reason that nothing passed by the gift of the residue except what was intended to pass, and a bequest of real estate for a particular purpose indicated a plain intention not to embrace it in the residuary bequest, and although it might be void or fail, yet it was so far operative as to indicate the intention of the donor not to allow it to pass under the residuary clause of the will. The common law was altered by 1 Vict. Ch. 26, and real estate is governed by the same rule as personal estate.2

§ 161. It was formerly said, that if a man conveyed his estate to a stranger without consideration, or for a mere nominal one, a trust resulted to the owner, on the ground that the law would not presume a man to part with his property without some inducement thereto.3 This was in strict analogy to the common law, whereby, if a feoffment was made without consideration, the legal title only passed to the feoffee, and a use resulted to the feoffor. In conformity with

1 Skrymsher v. Northcote, 1 Swans. 566; McDonald v. Bryce, 2 Keen, 276; Eyre v. Marsden, 2 Keen, 564; Woolmer's Est. 3 Whart. 477; Johnson v. Clarkson, 3 Rich. Eq. 305; Salt v. Chattaway, 3 Beav. 576; Floyd v. Barker, 1 Paige, 480; Frazier v. Frazier, 2 Leigh, 642; Trippe v. Frazier, 4 H. & J. 446.

2 In the United States there is considerable variety in the decisions of the courts, if not some uncertainty in the law, where it is not determined by statute. See a very learned discussion of the law in New York in Van Kluck v. Dutch Reformed Church, 6 Paige, 600, 20 Wend. 458. In Massachusetts, Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 306; Clapp v. Stoughton, ib. 463; 4 Kent, Com. 541.

8 Lewin on Trusts, 116 (5th Lond. ed.), and cases cited; Tolar v. Tolar, 1 Dev. Eq. 456; 2 Story, Eq. Jur. § 1199; Cecil v. Butcher, 2 J. & W. 573; Souerbye v. Arden, 1 Johns. Ch. 240.

4 Dyer v. Dyer, 2 Cox, 92; Pinney v. Fellows, 15 Vt. 538; Botsford v. Burr, 2 Johns. Ch. 405.

this rule, Mr. Cruise lays it down, that if the legal estate in lands is conveyed to a stranger without any consideration, there arises a resulting trust to the original owner; for where there is neither consideration, nor declaration of use, to show the intention of the parties, it cannot be supposed that the estate was intended to be given away. And the burden was put upon the grantee to show the consideration, and upon failure of proof, a use was presumed to the grantor, for the reason, as stated by Sir Francis Bacon, that when feoffments were made, it grew doubtful whether estates were in use or purchase, and as purchases were things notorious, and uses were things secret, the Chancellor thought it more convenient to put the purchaser to prove his consideration, than the feoffor to prove his trust, and so made intendment toward the use, and put the purchaser to the proof of his purchase. To the same effect are Coke on Littleton and many of the older, and some of the more modern, authorities.*

§ 162. But the rule that a trust resulted to the grantor upon a voluntary conveyance was confined to common-law conveyances or assurances, such as feoffments, grants, fines, recoveries, and releases which operated without consideration, and vested the estate in the alienee by the act itself, as by livery of seizin; although it was always doubtful whether a use could result from a conveyance by lease and release, even though it was voluntary, and no uses were declared; for the extinguishment of the estate of the lessee was

1 Cruise, Dig. tit. 12, c. 1, § 52; tit. 11, c. 2 Cruise, Dig. tit. 11, c. 4, § 16 et seq.

8 Bacon on Uses, 317.

4, § 16.

4 1 Inst. 23 a, 271 a; Dyer, 166 a, 186 b; 11 Mod. 182; Cleve's Case, 6 Rep. 17 b; Woodliffe v. Drury, Cro. Eliz. 439; Duke of Norfolk v. Brown, Pr. Ch. 80; Warman v. Seaman, 2 Freem. 308; Hayes v. Kingdome, 1 Vern. 33; Grey v. Grey, 2 Swans. 598; Elliot v. Elliot, 2 Ch. Ca. 232; Attorney-General v. Wilson, 1 Cr. & Ph. 1; Sculthorpe v. Burgess, 1 Ves. Jr. 92; Tyrrell's Case, 2 Freem. 304; Ward v. Lant, Pr. Ch. 182.

Cruise, Dig. tit. 11, c. 4, § 16.

a good consideration, yet such a conveyance was a strict common-law conveyance. This rule does not apply to modern conveyances, and no trust is now held to result to a grantor, although he conveys his estate without consideration.2 At the present day almost all conveyances are in form deeds of bargain and sale, and operate to pass the estate by virtue of the statute of uses, or of statutes in the several States prescribing the formalities necessary to convey lands. Under the statute of uses, the bargain between the bargainor and the bargainee, and the consideration, raised a use in the bargainee, the statute immediately stepped in and vested the legal title in the same person for whom a beneficial use had been raised by the bargain. In conveyances that are in form deeds of bargain and sale, parol evidence cannot be received to control or contradict the statement of the consideration. Such a statement is a solemn and essential part of the deed, and its existence cannot be disproved by parol,3 although it is allowed so far to control the statement as to the payment of it, as to show that it still exists as a debt due from the grantee to the grantor. And so in States where it is declared by statute,

1 Cruise, Dig. tit. 32, c. 11, § 17.

2 Hutchins v. Lee, 1 Atk. 447, Lloyd v. Spillett, 2 Atk. 150; Young v. Peachy, ib. 257; Burn v. Winthrop, 1 Johns. Ch. 329; Graff v. Rohrer, 35 Md. 327; Hogan v. Jaques, 19 N. J. Ch. 123; Bust v. Wilson, 28 Cal. 632; Jackson v. Cleveland, 15 Mich. 94; Ownes v. Ownes, 8 C. E. Green, 60. But see McKenney v. Burns, 31 Ga. 295; and Haigh v. Kaye, L. R. 7 Ch. 469; Blodgett v. Hildreth, 103 Mass. 486.

* Leman v. Whitley, 4 Russ. 423; Philbrook v. Delano, 29 Me. 410; Graves v. Graves, 29 N. H. 129; Randall v. Phillips, 3 Mason, 388; Hutchinson v. Tindall, 2 Green, Ch. 357; Alison v. Kurtz, 2 Watts, 187; Wilkinson v. Wilkinson, 2 Dev. Eq. 376; Morris v. Morris, 2 Bibb, 311; Movan v. Hayes, 1 Johns. Ch. 339; Rathburn v. Rathburn, 6 Barb. 98; Balbeck v. Donaldson, 6 Am. Law Reg. 148; Graff v. Rohrer, 35 Md. 327.

4 Leman v. Whitley, 4 Russ. 423; Graves v. Graves, 29 N. H. 129; Philbrook v. Delano, 29 Me. 410; Randall v. Phillips, 3 Mason, 388; Thomas v. McCormack, 9 Dana, 188; Radsall v. Radsall, 9 Wis. 379; Farrington v. Barr, 36 N. H. 86.

as in Massachusetts,1 that deeds duly executed, acknowledged, and recorded, shall be effectual to pass the estate without other ceremony, it is not competent to control the effect of such deeds by parol, or to engraft uses, trusts, or other limitations upon them not contained in the instruments themselves, or in some other instrument executed before or at the same time with them, in such manner as to become a part of them. To allow parol evidence to raise a resulting trust upon such deeds would be to break in upon the express provisions of the statute of frauds. Mr. Hill states the modern rule correctly when he says, "that it is the clear result of the authorities that where a person, a stranger in blood to the donor, and a fortiori if connected with him in blood, is in possession of an estate under a voluntary conveyance duly executed, the mere fact of his being a volunteer will not of itself create any presumption that he is a trustee for the grantor; but he will be considered entitled to the enjoyment of the beneficial interest unless that title is displaced by sufficient evidence of an intention on the part of the donor to create a trust, and he need not bring proofs to keep his estate, but the plaintiff must bring proofs to take it from him."4 And where the deed contains a clause, as most deeds

1 Gen. Stat. c. 89, § 1.

2 Gerry v. Stimson, 60 Me. 186; Titcomb v. Morrill, 10 Allen, 15; Bartlett v. Bartlett, 14 Gray, 278; Walker v. Locke, 5 Cush. 90; Blodgett v. Hildreth, 103 Mass. 484; Carnes v. Colburn, 104 Mass. 274; Whitton v. Whitton, 3 Cush. 191; Philbrook v. Delano, 29 Me. 410; Graves v. Graves, 29 N. H. 129; Rathbun v. Rathbun, 6 Barb. 105; Bank of U. S. v. Housman, 6 Paige, 526; Miller v. Wilson, 15 Ohio, 108; Parnell v. Hingston, 3 Sm. & Gif. 337; Taylor v. Taylor, 1 Atk. 386; Dyer v. Dyer, 2 Cox, 93; Fordyce v. Wallis, 3 Bro. Ch. 576; Squire v. Harder, 1 Paige, 494; Balbeck v. Donaldson, 6 Am. Law Reg. 148; Jackson r. Garnsey, 16 Johns. 189; Jackson v. Caldwell, 1 Cow. 622; Farrington v. Barr, 36 N. H. 431. 8 Hill on Trustees, 170 (4th Am. ed.).

4 Cook v. Fountain, 3 Swans. 590; Clavering v. Clavering, 2 Vern. 473; Boughton v. Boughton, 1 Atk. 625; Cecil v. Butcher, 2 Jac. & W. 573; Jeffreys v. Jeffreys, 1 Cr. & Ph. 138; Dummer v. Pitcher, 2 M. & K. 262; Leman v. Whitley, 4 Russ. 423; Graff v. Rohrer, 35 Md. 327.

do, that the estate is had and held to the grantee, his heirs and assigns, to his and their use and behoof, no trust can result, as it is a rule that when a use is declared, no other use can be shown to result.1 And when a deed contains covenants of warranty, no use can result to the grantor, for such covenants estop him from claiming any legal or beneficial interest in the estate.2

§ 163. It may be stated that courts do not favor voluntary conveyances, and will not lend their aid to enforce them if they are imperfectly executed, and their decrees are necessary to give them validity and force. In such cases equity will not interfere, but will leave the parties to their rights at law. And, further, equity will always look upon such conveyances with suspicion, especially if made to strangers for no particular purpose. If any fraud or misrepresentation is practised upon a grantor, equity will fasten a trust upon the conscience of the fraudulent grantee. If fraud upon the grantor is alleged, the fact that the conveyance was without consideration is always considered as pertinent evidence, and will be considered as one badge of fraud, if there are other facts and circumstances pointing in that direction. A disposition by will, however, is not subject to these rules, as a gift by will imports a consideration, and no averments by parol can be received to fasten a use or trust upon such gift; but the donee will take both the legal and beneficial estate, unless it clearly appears from the whole will that such was not the intention of the donor.6

§ 164. It is further to be observed that voluntary conveyances to a wife or child were never within the rule that

1 Graves v. Graves, 29 N. H. 129; Sprague v. Woods, 4 Watts & S. 192; Vandervolgen v. Yates, 5 Seld. 219.

2 Philbrook v. Delano, 29 Me. 410.

Lane v. Ewing, 31 Mo. 75.

▲ Post, chap. VI.

5 Post, § 187.

• Ante, § 94.