character of a purchaser; for if one pay the purchase-money by way of loan for another, and the conveyance is taken to the other, no trust will result to the one who thus pays the purchase

1

money; on the other hand, if one should advance the purchasemoney and take the title to himself, but should do this wholly upon the account and credit of the other, he would hold the estate upon a resulting trust for the other.2 And if partly on the

St. 123; Smith v. Sackett, 5 Gilm. 534; Kelly v. Johnson, 28 Mo. 249; Botsford v. Burr, 2 Johns. Ch. 405; Getman v. Getman, 1 Barb. Ch. 499; Wright v. King, Harr. Ch. 12; Bernard v. Bongard, Harr. Ch. 130; Dudley v. Batchelder, 53 Me. 403; Russell v. Allen, 10 Paige, 249; Kirkpatrick v. McDonald, 1 Jones, 393; Smith v. Burnham, 3 Sumner, 435; White v. Sheldon, 4 Nev. 280; Kendall v. Mann, 11 Allen, 15.

1 Bartlett v. Pickersgill, 1 Eden, 516; Crop v. Norton, 9 Mod. 235; White v. Carpenter, 2 Paige, 217; Henderson v. Hoke, 1 Dev. & Bat. Ch. 119; Dudley v. Batchelder, 53 Maine, 403; Gibson v. Toole, 40 Miss. 788; Whaley v. Whaley, 71 Ala. 162; Harvey v. Pennypacker, 4 Del. Ch. 445; Boehl v. Wadgymar, 54 Tex. 589.

2 Aveling v. Knipe, 19 Ves. 441; Page v. Page, 8 N. H. 187; Runnells v. Jackson, 1 How. (Miss.) 358; Lounsbury v. Purdy, 18 N. Y. 515; 16 Barb. 380; Buck v. Pike, 2 Fairf. 9; Morey v. Herrick, 18 Penn. St. 123; Stucky v. Stucky, 30 id. 546; Kelly v. Johnson, 28 Mo. 249; Cutler v. Tuttle, 19 N. J. Eq. 562; Dryden v. Hanaway, 3 Md. 254; Fleming v. McHale, 47 Ill. 282; Honore v. Hutchins, 8 Bush, 687; Bates v. Kelley, 80 Ala. 142; Ward v. Matthews, 73 Cal. 13; Caruthers v. Williams, 21 Fla. 485; Green v. Dietrich, 114 Ill. 636; Bradley v. Luce, 99 Ill. 234. As where the lender

be based upon anything of value furnished by the cestui as part or all of the consideration for the purchase. Garten v. Trobridge, 80 Kan. 720; Gaynor v. Quinn, 212 Pa. St. 362; McCormick v. Cooke, 199 Pa. St. 631 (cases where the consideration was a debt due from the grantor to the cestui); Dana v. Dana, 154 Mass.491 (bricks owned by the cestui); Fay v. Fay,50 N. J. Eq. 260; Light v. Zeller, 144 Pa. St. 570, 582; Butler v. Carpenter, 163 Mo. 597 (the release of a previous interest in the same property). See also Condit v. Bigelow, 64 N. J. Eq. 504 (where

a husband took a conveyance of property to which his wife was entitled under her father's will.) Hayes v. Carroll, 74 Minn. 134, and Barlow v. Barlow, 47 Kan. 676, (where the wife was equitably entitled to the conveyance under the homestead law); Reinhart v. Bradshaw, 19 Nev. 255 (where one of two jointly entitled to the property under the homestead law procured a conveyance to himself). See also Sweesey v. Sparling, 81 Iowa, 433; Brundy v. Mayfield, 15 Mont. 201; Moultrie v. Wright, 154 Cal. 520; Hendrichs v. Morgan, 167 Fed. 106.

account and credit of another, he would hold as trustee pro tanto.1 (a).

takes the title merely as security for his advance. Wright v. Gay, 101 Ill. 233; Powell v. Powell, 114 Ill. 329. See also Weekly v. Ellis, 30 Kans. 507; Tenny v. Simpson, 37 Kans. 353; Wiggin v. Wiggin, 58 N. H. 235.

1 Marvin v. Brooks, 94 N. Y. 71; Leggett v. Leggett, 88 N. C. 108; Brown v. Cave, 23 S. C. 251; Mims v. Chandler, 21 S. C. 480; Cook v. Sherman, 4 McCrary, 20.

§ 134. A trust results from the acts, and not from the agreements, of the parties, or rather from the acts accompanied by the agreements; but no trust can be set up by mere parol agreements, or, as has been said, no trust results merely from the breach of a parol contract; as if one agrees to purchase land and give another an interest in it, and he purchases and pays his own money, and takes the title in his own name, no trust can result.1 And so if a party makes no payment, and none is made on his account, either actually or constructively, he cannot claim a resulting trust. As where a father made a deed to a son-in-law,

1 Kisler v. Kisler, 2 Watts, 323; Williard v. Williard, 56 Pa. St. 119; Loomis v. Loomis, 60 Barb. 22; Stover v. Flack, 41 Barb. 162; Thorner v. Thorner, 18 Ind. 462; Rogers v. Simmons, 55 Ill. 66; Loomis v. Loomis, 28 Ill. 454; Green v. Cook, 2 Ill. 196; Duffy v. Masterson, 44 N. Y. 557; Whetham v. Clyde, 1 Pa. Leg. Gaz. R. 55. But see Hidden v. Jordan, 21 Cal. 92; Green v. Drummond, 3 Md. 71; Meason v. Kaine, 63 Penn. St. 335; Smith v. Hollenback, 53 Ill. 223; Lantry v. Lantry, 51 Ill. 451; Robinson v. Robinson, 45 Ark. 481; Hunt v. Freedman, 63 Cal. 510; see § 209. Ward v. Spivey, 18 Fla. 847; Follett v. Badeau, 26 Mun, 253; Lawrence v. Lawrence, 14 Oregon, 77. [Butts v. Cooper, 152 Ala. 375; Banes v. Morgan, 204 Pa. St. 185; Withnell v. Withnell, 69 Neb. 605.] A trust resulting from the acts of the parties will not be converted into an express trust by the agreement of the parties; that is, it will not be any the less a resulting trust, and it will not be within the statute of frauds. Cotton v. Wood, 25 Iowa, 43. 2 Jackson v. Ringland, 4 Watts & S. 149; Botsford v. Burr, 2 Johns. Ch. 408; Lathrop v. Hoyt, 7 Barb. 60; Dorsey v. Clark, 4 Har. & J. 551; Smith v. Smith, 3 Casey, 180; Fischili v. Dumaresly, 3 Marsh. 23; Sharp v. Long,

for him. It may be paid for him by the trustee. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must incur an obligation to repay, so that the consideration actually moves from him at the time. He may take money from his purse, or he may borrow it, and he may borrow it from the trustee. And if the lender pays the money borrowed for the borrower, the borrower pays it. The test is whose money pays the consideration for the purchase."

The burden of proving that all or part of the purchase-money was advanced as a loan in such a case is upon the person claiming an interest in the property. It will not be inferred from the bare fact of a parol agreement to purchase and hold an interest in the property for him. There must be other evidence of a definite understanding that the transaction shall raise a debt between the two. Crawford v. Crawford, 77 S. C. 205; Bourke v. Callanan, 160 Mass. 195. See also Norton v. Brink, 75 Neb. 566.

in consideration of love and affection for his daughter, no trust resulted.' (a) And so a mere parol declaration by one that he is buying land for another is not sufficient to establish a resulting trust; there must be some proof of an actual or constructive payment by the person claiming such a trust.2 The rule is otherwise if the promise led the plaintiff to take action he would not otherwise have taken. Then the breach of the promise becomes a fraud, and a trust may exist.3

§ 135. Again, parol proof cannot be received to establish a resulting trust in lands purchased by an agent and paid for by his own funds, no money of the principal being used for the payment; for the relation of principal and agent depends upon the agreement existing between them, and the trust in such a case must arise from the agreement, and not from the transaction, and where a trust arises from an agreement, it is within the

4 Casey, 434; Thompson v. Branch, Meigs, 390; Walker v. Brungard, 13 S. & M. 723; Ensley v. Ballentine, 4 Humph. 233; Lynn v. Lynn, 5 Gil. 602; Sample v. Coulson, 9 Watts & S. 62; Peebles v. Reading, 8 Ser. & R. 484. [ McIntosh v. Green, 25 App. D. C. 456; Byers & Co. v. McEniry, 117 Iowa, 499 (where a debtor conveyed to one of his creditors upon the latter's parol agreement to apply the surplus to the claims of other creditors); Monson v. Hutchin, 194 Ill. 431; Bourke v. Callanan, 160 Mass. 195.]

1 Thompson v. Thompson, 18 Ohio St. 73. [Acker v. Priest, 92 Iowa, 610; Noe v. Roll, 134 Ind. 115; Higbee v. Higbee, 123 Mo. 287; Lewis v. Stanley, 148 Ind. 351.]

2 Ibid.; Kisler v. Kisler, 2 Watts, 323; Williard v. Williard, 56 Penn. St. 119.

See § 171 et seq."

(a) Or where a husband makes a voluntary conveyance to his wife through the medium of a third person. Apart from the question of intention no trust for the husband can result from the conveyance by the third person to the wife, since no consideration is paid. Moore v. Horsley, 156 Ill. 36; Crawley v. Crafton, 193 Mo. 421;

Handlan v. Handlan, 42 W. Va. 309; Taylor v. Miles, 19 Or. 550; Lane v. Lane, 80 Me. 570. Likewise, where a mother and father convey to a daughter upon a parol trust as to one-half for an infant son no trust results. Peterson v. Boswell, 137 Ind. 211. As to constructive trusts in such a case, see infra, § 181, note.

statute of frauds, and must be in writing. (a) This rule is so inflexible, that though the agent may be indicted, and convicted of perjury in denying his character as agent in his answer under oath, the court cannot decree and establish the trust.2 But if an agent invest his principal's money in real estate without his knowledge, or if, investing the money with his knowledge, he take the deed in his own name without his consent, or take a deed in a form contrary to the understanding, there will be a resulting trust.3 But if one standing in no fiduciary relation obtains another's property wrongfully, and invests it in land in his own name, or if a clerk appropriates his master's money and buys real estate in his own name, there is no resulting trust.1 (b)

1 Kennedy v. Keating, 34 Mo. 25; Woodhull v. Osborne, 2 Edw. Ch. 615; Lathrop v. Hoyt, 7 Barb. 60; 2 Story, Eq. Jur. § 1201 a; Bartlett v. Pickersgill, 1 Eden, 515; 4 Burr. 22; 1 Cox, 15; 4 East, 577; Rastel v. Hutchinson, 1 Dick. 44; Lamas v. Bayley, 2 Vern. 627; Atkins v. Rowe, Mose. 39; O'Hara v. O'Neil, 2 Bro. P. C. 39; Jackman v. Ringland, 4 Watts & S. 149; Peebles v. Reading, 8 Ser. & R. 492; Pinnock v. Clough, 16 Vt. 507; Flagg v. Mann, 2 Sum. 546; Walker v. Brungard, 13 Sm. & M. 765; Taliaferro v. Taliaferro, 6 Ala. 406; Moore v. Green, 3 B. Mon. 407; Fowke v. Slaughter, 3 A. K. Marsh. 57; Dorsey v. Clarke, 4 Har. & J. 551; Pearson v. East, 36 Ind. 28; Minot v. Mitchell, 30 Ind. 228; Arnold v. Cord, 16 Ind. 177; Graves v. Ward, 2 Duv. 301; Heacock v. Coatesworth, Clarke, 84; Burden v. Sheridan, 36 Iowa, 125; Nestal v. Schmid, 29 N. J. Eq. 460. But where an attorney purchased property sold upon an execution in favor of his client at a grossly inadequate price, it was held that he was a trustee for his principal. Howell v. Baker, 4 Johns. Ch. 118. See Wade v. Pettibone, 11 Ohio, 57; 14 Ohio, 557.

2 Bartlett v. Pickersgill, 1 Eden, 515; King v. Boston 4 East, 572.

3 Day v. Roth, 18 N. Y. 448; Bridenbecker v. Lowell, 32 Barb. 9; Pugh v. Pugh, 9 Ind. 132; Rothwell v. Dewees, 2 Black, 613; Bruce v. Ronly, 18 Ill. 67; Follansbe v. Kilbreth, 17 Ill. 522; Squire's App. 70 Penn. St. 268; Seichrist's App. 66 id. 237. So if he take the deed in his wife's name, a knowledge by the principal that the deed is so made will not affect the trust. Bostleman v. Bostleman and Wife, 24 N. J. Eq. 103.

Ensley v. Ballentine, 4 Humph. 233; Campbell v. Drake, 4 Ired. Eq. 94. But where A. embezzled B.'s money and invested it in stock in the name of C., a mere volunteer, a resulting trust was enforced against C. in

(a) But see infra, §206 and notes, as to constructive trusts in such

cases.

(b) But in such a case equity will construct a trust for the benefit of the person whose money has been