by any estoppel, or by any declaration on the face of the conveyance by the parties, because assuming that courts would not tolerate evasion of the statute, this would furnish an obvious mode of evading the policy of the law.

The design of the 51st, 52d, and 53d sections of the statute seems to have been to prevent all implied trusts from arising, and as the revisers had only this object in view, they probably did not contemplate the absurd consequences of their system. These sections in substance provide, that when a grant for a valuable consideration shall be made to one person, and the consideration shall be paid by another, the grant shall have the same effect as a voluntary conveyance designed to defraud creditors would have, if made by the party who paid the consideration. Here is a gross perversion of principle. A voluntary conveyance is good between the parties only because it operates by way of estoppel, but in the case contemplated by the statute, there can be no estoppel, and the party who pays for the land is equitably entitled to its enjoyment. It is scarcely conceivable, that the revisers intended to inflict a forfeiture of the land upon the party who attempted to carry into effect the innocent purpose of creating a trust, especially when it is considered that for reasons already suggested, a collateral agreement to pay over the profits would be binding in law, and that trusts in this manner may be created to any

extent.

If the implied trust is not permitted to exist in favor of the party who may have paid the consideration, where there is no agreement to pay over the profits, then it would seem conformable to the principles of equity jurisdiction, that the alienee should have been required to convey the land to the true owner. The terms of the statute, however, are imperative that the title "shall vest in the person named as alienee," and provision is only made that the statute shall not extend to cases where the conveyance is

made without the knowledge of the person paying the consideration. Although the statute provides for the creditors of the person who pays the consideration, some difficulty may arise in the application to this case of the rules of law in regard to conveyances, fraudulent in relation to creditors, under the statute of Elizabeth. There is no analogy between the case in question and voluntary conveyances. Such conveyances do not pass the estate to the alienee discharged of a trust, unless they are founded upon a good consideration; they operate merely by estoppel against the grantor. Voluntary conveyances under the statute of Elizabeth are deemed to have been fraudulent as against subsequent creditors; but this intendment of fraud is founded upon the idea of a continuing trust. The New York statute, however, only provides for creditors existing at the time of the conveyance, and, subject to the lien of such creditors, professes to divest the person paying the consideration of all right or interest in the property, and to vest the land in the alienee. No trust is recognised in favor of the person whose funds are employed in the purchase. The aim of the statute is to destroy that trust, which on principles of common honesty would in such a case be implied. If a knowledge of the fact, that the alienee had paid for the land with the money of another person, was brought home to a subsequent creditor, or to a subsequent purchaser, of the alienee, his conscience would not be affected, because it may well be contended, that the statute which provides for creditors of the person paying the consideration, by vesting the title in the alienee divested of all other trusts or liens, does subject the land to the free disposal of the alienee and to all the liens of his subsequent creditors. Knowledge on the part of a subsequent creditor or purchaser, that the alienee had purchased the land with the money of another person, without the knowledge or consent of the latter, would, according to the provisions of the statute, affect the

conscience of such purchaser or creditor, and render the land liable to a trust. It is probable, that the conveyance would be considered as void in regard to subsequent creditors, only in cases of actual fraud, brought home to the debtor, and not merely presumable from the transaction itself. The whole subject, however, is involved in difficulties, which are precisely of a character to be avoided in a code of laws. An arbitrary analogy is attempted to be created, where none exists, between the purchase of land in the name of another and voluntary conveyances in fraud of subsequent creditors and purchasers; and yet the very object of the statute, which is the destruction of implied trusts, will embarrass courts in the application of the rules adopted in relation to fraudulent conveyances under the statutes of 13 and 27 Eliz., and which, though well settled, are founded upon the existence of a trust. Trusts at common law, by their flexible nature, constituted the great means by which a proper destination was given to the beneficial enjoyment of estates; but the statute professes to abolish trusts with certain exceptions, and if it is observed to the letter, the law will be instrumental in defeating its own purposes.

But there is no analogy whatever between the purchase of land in the name of another, and a conveyance of land to defraud creditors. Such a purchase is rather to be regarded as an attempted disposition of funds by way of purchase money, out of the reach of creditors. While for reasons already suggested, it will be impossible to apply to this case the doctrines relating to voluntary conveyances, it will be necessary for courts to supply new principles in the various combinations of events which the statute has not provided for.

The revisers were aware that the object of the statute might be evaded by equities arising under the doctrine of implied or resulting trusts. They provided therefore that

any direct attempt to create a trust by a conveyance of land to one person, when the purchase money was paid by another, should fail of effect by vesting the title (subject to certain exceptions) in the nominal alienee, but all other resulting trusts remain as before the statute. And all the uncertainty and doubt which were supposed to constitute a sufficient reason for abolishing uses and trusts will still exist. The same "mysterious" language will still be used in reference to them. The profession must still be conversant with the abstruse learning relating to this branch of the law. When the character of a trust estate has once attached, it will still continue in all descents, devises and assignments. So that even if the statute is not evaded, trust estates must yet exist, to a great extent, with all the law and the learning applicable to them, obscured by new difficulties, and the greater uncertainty created by the

statute.

A very important change has been made by the New York statute in regard to the duties and liability of trustees in cases of trusts, created by devise, as authorized by the statute. With a view to prevent possible evasion of the general design of the statute, to abolish trusts, it was provided that express trusts might be created, to receive the rents and profits of land and apply them to the use of any person; but the trustees were not authorized to receive the rents and profits, and pay them over to the persons beneficially entitled. Here the object of the revisers, as it appears by the opinion of chief justice Savage, in the case of Coster v. Lorrillard, (14 Wend. Rep. 265), was merely to prevent the growth of trusts in evasion of the policy of the statute, but they have very deeply and we think injuriously affected an important head of equity. For manifest reasons of policy, guardians are made responsible for the application of the funds of minors, of whose persons as well as property they have the custody, but why should trustees be made

responsible in all other cases, where they have not the guardianship of the person nor the authority to regulate expenditures. The duty thus impliedly imposed on trustees is impracticable, and yet if it is not exercised, the trustee is liable for any application of the profits which the chancellor may disapprove. It is necessary, therefore, for the trustee, for his own security, to keep a strict account of all expenditures, and to show that they were always necessary. It will never be sufficient to show that the money has been paid over to the cestui que trust. No presumption will exist in favor of the trustee that a proper application has been made; he is liable to be called upon to account in the court of chancery, and at all times, and generally without the benefit of the statute of limitations, he must be ready to account, and in his account will derive no further advantage from the receipts of the cestui que trust, than as they are supported by evidence that the profits have been duly applied. Here again the analogy of the system is broken, and the great object to be attained in a code of laws is frustrated, for the courts must provide for cases which arise, without the aid of precedents in equity, and supply rules which the legislature have omitted, whilst inextricable confusion must result from conflicting principles. It is a rule of law, when a husband does not provide for the maintenance of his wife, that a stranger may furnish her with money for her support, and recover the amount in an action against the husband. It is not necessary to see to the application of the money, but the husband is liable for the money; although it may have been lost or misapplied by the wife,' because the civil incapacity of the wife does not result from any supposed want of discretion. Now, why should a trustee for the wife, in the case supposed, where she has been deserted by her husband, be permitted to sup

1 See Reeve's Domestic Relations, 84.