§ 136. In England, if two persons join in a purchase and contribute equally, and take the title in their own names, there is no reason to presume a resulting trust, and the two are joint tenants, the survivor taking the whole jure accrescendi.1 And so if two contract for a purchase to them and their heirs, paying equal proportions, and one dies, the court will order a specific performance by a conveyance to the survivor alone. But the court lays hold of every circumstance to defeat the joint tenancy and convert it into a tenancy in common.3 Thus, where two tenants in common of a joint mortgage term purchase the equity of redemption, or several engage in a joint undertaking, or partnership, or trade, or speculation, or several purchase an estate and pay equally, but one improves the estate at his own

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favor of B. Bank of America v. Pollock, 4 Edw. Ch. 415; and see Pascoag Bank v. Hunt, 3 Edw. 215; ante, § 128. See also Newton v. Porter, 5 Lans. 417.

1 Robinson v. Preston, 4 K. & J. 505; Bone v. Pollard, 24 Beav. 288; Moyse v. Gyles, 2 Vern. 385; Hayes v. Kingdome, 1 Vern. 33; York v. Eaton, 2 Freem. 23; Aveling v. Knipe, 19 Ves. 441; Rigden v. Vallier, 3 Atk. 735; Lake v. Gibson, 1 Eq. Cas. Ab. 291; Anon., Carth. 15; Rea v. Williams, Sugd. V. & P. (14th ed.) p. [697]; Thicknesse v. Vernon, 2 Freem. 84.

2 Aveling v. Knipe, 19 Ves. 441.

Robinson v. Preston, 4 K. & J. 505; Tompkins v. Mitchell, 2 Rand. 428; Brothers v. Porter, 6 B. Mon. 106; Barribeau v. Brant, 17 How. 43.

Edwards v. Fashion, Pr. Ch. 332; Morly v. Bird, 3 Ves. 631; Rigden v. Vallier, 3 Atk. 734; Vickers v. Cowell, 1 Beav. 629; Partridge v. Pawlett, 1 Atk. 467; Anon., Carth. 16; Petty v. Styward, 1 Ch. R. 57; Randall v. Phillips, 3 Mason, 378.

Lake v. Gibson, 1 Eq. Cas. Ab. 290; 3 P. Wms. 158; York v. Eaton, 2 Freem. 23; Jackson v. Jackson, 9 Ves. 597 n.; Lyster v. Dolland, 1 Ves. Jr. 434; Jeffreys v. Small, 1 Vern. 217; Caines v. Grant, 5 Binn. 119; Duncan v. Forrer, 6 Binn. 193; Sigourney v. Munn, 7 Conn. 11; Overton v. Lacy, 6 Monroe, 13; Deloney v. Hutcheson, 2 Rand. 183; Cuyler v. Bradt, 2 Caines' Cas. 326; Pugh v. Currie, 5 Ala. 446; McAllister v. Montgomery, 3 Hayw. 94; Farley v. Shippen, Wythe, 135. See Appleton v. Boyd, 7 Mass. 131; Kinsley v. Abbott, 19 Maine, 430.

wrongfully used, if the money can be traced. Supra, § 128, note. In the case of an agent wrongfully using his principal's money, rightfully in his possession, to pay for

property which he has purchased for himself, the trust is constructive rather than resulting. Supra, § 127, note; infra, § 206, note a.

cost,' equity will construe them to be tenants in common and not joint tenants. In this country, title by joint tenancy is very much reduced in extent, and the incident of survivorship is almost entirely destroyed by statutes, except in the case of trustees, executors, and others, in whom such a tenancy is necessary for the execution of their trusts.2

§ 137. The transaction out of which a trust results may be proved by parol.3 The statute of frauds extends to and embraces only trusts created or declared by the parties, and does not affect trusts arising by operation of law.1 (a) Indeed, such trusts are specially excepted in the statute of frauds of most States. The exception, however, was omitted in the statute of Rhode Island; but Mr. Justice Story held that the omission was immaterial, as such trusts were excepted in the nature of things.5

1 Lake v. Gibson, 1 Eq. Cas. 291.

2 See 4 Kent Com. 396 (11th ed.).

' Livermore v. Aldrich, 5 Cush. 435; Boyd v. McLean, 1 Johns. Ch. 582; Verplank v. Caines, id. 57; Botsford v. Burr, 2 id. 405; Ch. 57; Page v. Page, 8 N. H. 187; Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Gardner Bank v. Wheaton, 8 Greenl. 373; Powell v. Monson & Brim. Manuf. Co., 3 Mason, 347; Elliott v. Armstrong, 3 Blackf. 199; Jennison v. Graves, id. 441; Blair v. Bass, 4 id. 550; Snelling v. Utterback, 1 Bibb, 609; Foote v. Bryant, 47 N. Y. 544; McGinity v. McGinity, 6 Penn. St. 38; Peiffer v. Lytle, 58 id. 386; Nixon's App., 63 id. 277; Byers v. Wackman, 16 Ohio, 80, 440; Faris v. Dunn, 7 Bush, 276; Caldwell v. Caldwell, 7 Bush, 515; Morgan v. Clayton, 61 Ill. 35; Knox v. McFarren, 4 Col. 586; Learned v. Tritch, 6 Col. 432. See Barbin v. Gasford, 15 La. An. 539. [Schrager v. Cool, 221 Pa. St. 622; Smithsonian Institution v. Meech, 169 U. S. 398; Sutton v. Whetstone, 21 S. D. 341. But see Barrow v. Grant's Estate, 116 La. 952.]

Ross v. Hegeman, 2 Edw. Ch. 373; Larkin v. Rhodes, 5 Porter, 196; Enos v. Hunter, 4 Gil. 211; Smith v. Sackett, 5 Gilm. 544; Foote v. Bryant, 47 N. Y. 544; Black v. Black, 4 Pick. 238; Bryant v. Hendricks, 5 Iowa, 256; Judd v. Haseley, 22 Iowa, 428; Ward v. Armstrong, 84 Ill. 151; Gale v. Harby, 20 Fla. 171.

Hoxie v. Carr, 1 Sum. 187.

(a) This applies to that clause of the statute which prohibits suits upon unwritten agreements not to

be performed within a year. Rayl v. Rayl, 58 Kansas, 585.

It follows that a party setting up a resulting trust may prove by parol the agreements under which the estate was purchased, and he may prove by parol the actual payment of the purchasemoney by himself, or in his behalf, although the deed states it to have been paid by the grantee in the conveyance.1 (a) And although the holder of the legal title has fraudulently or by mistake made a declaration that he holds the property for some other person,2 or states it to be for the use of the grantor,3 and although the trust, and all the circumstances out of which it arises, may be denied under oath in the answer, yet the facts may all be proved by parol in opposition to the answer. In such

1 DePeyster v. Gould, 2 Green, Ch. 474; Dismukes v. Terry, Walk. 197; Peabody v. Tarbell, 2 Cush. 232; Barron v. Barron, 24 Vt. 375; Smith v. Burnham, 3 Sum. 438; Malin v. Malin, 1 Wend. 626; Harder v. Harder, 2 Sandf. Ch. 17; Peirce v. McKeehan, 3 Barr, 136; Lloyd v. Carter, 17 Pa. St. 216; Peebles v. Reading, 8 Serg. & R. 484; Millard v. Hathaway, 27 Cal. 119; Lyford v. Thurston, 16 N. H. 399; Bayles v. Baxter, 22 Cal. 575; Cooper v. Skeele, 14 Iowa, 578. [Lynch v. Herrig, 32 Mont. 267; Long v. Mechem, 142 Ala. 405; McMurray v. McMurray, 180 Mo. 526; Howard v. Howard, 52 Kan. 469; Snider v. Johnson, 25 Or. 328; Boyd v. Boyd, 163 Ill. 611; C. B. & Q. R. Co. v. First Nat. Bank, 58 Neb. 548; Withnell v. Withnell, 69 Neb. 605.] In Kirk v. Webb, Pr. Ch. 84, the court refused to admit parol evidence to control the recitals of the deed as to the payment of the consideration, and this decision was followed in Heron v. Heron, Pr. Ch. 163; Freem. 248; Skitt v. Whitmore, Freem. 280; Kinder v. Miller, Pr. Ch. 172; Newton v. Preston, id. 103; Hooper v. Eyles, 2 Vern. 480; Cox v. Bateman, 2 Ves. 19; Ambrose v. Ambrose, 1 P. Wms. 321; Deg v. Deg, 2 id. 414; but the rule has been changed, and the doctrine stated in the text is now established beyond controversy. Bartlett v. Pickersgill, 1 Eden, 515; Lench v. Lench, 10 Ves. 517; Groves v. Groves, 3 Y. & J. 163; See 2 Story, Eq. Jur. § 1201, and notes; Livermore v. Aldrich, 5 Cush. 435; Connor v. Follansbee, 59 N. H. 125. [Brooks v. Union Trust, etc. Co., 146 Cal. 134.]

2 Hanson v. First Presbyterian Church, 1 Stock. 441.

3 Cotton v. Wood, 25 Iowa, 43.

⚫ Cooth v. Jackson, 6 Ves. 39; Buck v. Pike, 2 Fairf. 24; Baker v. Vining, 30 Me. 121; Page v. Page, 8 N. H. 187; Moore v. Moore, 38 N. H. 382; Boyd v. McLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 id. 405; Swinburne v. Swinburne, 28 N. Y. 568; Snelling v. Utterback, 1 Bibb, 609; Lloyd v. Lynch,

(a) And he may prove by parol that a purchase-money note signed by the grantee was intended and treated as between the grantee and

the cestui as the debt of the latter. Small v. Hatch, 151 Mo. 300. See Levy v. Mitchell, 114 S. W. 172 (Tex. Civ. App. 1908.).

case the trust must be clearly alleged in the bill, not only in terms, but all the facts must be set out from which the trust is claimed to result.1 (a) General vague statements of a testator that the land he owned was the "security or property held in trust by him for the payment of the trust fund," will not be sufficient to impress a trust on the property in the absence of clear evidence that trust funds were used in the purchase of the land. The facts in all cases must be proved with great clearness and certainty, especially when the claim depends upon

28 Pa. St. 419; Letcher v. Letcher, 4 J. J. Marsh. 590; Miller v. Stokely, 5 Ohio St. 194; Elliott v. Armstrong, 2 Blackf. 198; Jenison v. Graves, id. 440; Blair v. Bass, 4 id. 540; Larkins v. Rhodes, 5 Porter, 196; Farringer v. Ramsey, 2 Md. 365; Greer v. Baughman, 13 Md. 257; Ensley v. Ballentine, 4 Humph. 233; Paine v. Wilcox, 16 Wis. 202; Olive v. Dougherty, 3 Iowa, 371; Vandever v. Freeman, 20 Tex. 333; Pugh v. Bell, 1 J. J. Marsh. 399.

Rowell v. Freese, 23 Maine, 182; Hickey v. Young, 1 J. J. Marsh. 1; Gascoigne v. Thwing, 1 Vern. 366; Rider v. Kidder, 20 Ves. 364; Groves v. Groves, 3 Y. & J. 163; Halcott v. Morkant, Pr. Ch. 168; Goodright v. Hodges, 1 Watk. Corp. 229; Willis v. Willis, 2 Atk. 71. [Byers v. Ferner, 216 Pa. St. 233.]

'Cuming v. Robins, 39 N. J. Eq. 46; Slocumb v. Marshall, 2 Wash. C. C. 397; Newton v. Preston, Pr. Ch. 103; Wright v. King, Harr. Ch. 12; Enos v. Hunter, 4 Gilm. 211; Carey v. Callan, 6 B. Mon. 44; O'Hara v. O'Neil, 2 Eq. Cas. Ab. 475; Cottington v. Fletcher, 2 Atk. 155; Ambrose v. Ambrose, 1 P. Wms. 321; Hyden v. Hyden, 6 Baxter (Tenn.), 406; Thomas v. Sandford, 49 Md. 181; Johnson v. Richardson, 44 Ark. 365; Harvey v. Pennybacker, 4 Del. Ch. 445; Green v. Dietrich, 114 Ill. 636; Witts v. Horney, 59 Md. 584; Philpot v. Penn., 91 Mo. 38; Rogers v. Rogers, 87 Mo. 257; Shaw v. Shaw, 86 Mo. 594; Modrell v. Riddle, 82 Mo. 31; Parker v. Snyder, 31 N. J. Eq. 164; Brickell v. Earley, 115 Penn. St. 473. As to what facts are competent and necessary to be proved, see Hunter v. Marlboro', 2 Wood. & M. 168; Morey v. Herrick, 18 Penn. St. 128; Blyholder v. Gibson, 18 Pa. St. 134; Farringer v. Ramsey, 4 Md. Ch. 33; Malin v. Malin, 1 Wend. 626; Harder v. Harder, 1 Sandf. 17; Snelling v. Utterback, 1 Bibb, 609; Freeman Kelly, 1 Hoff. 90; Baker v. Vining, 30 Me. 128; Clarke v. Quackenboss, 27 Ill. 260; Nelson v. Warrall, 20 Iowa, 409; White v. Weldon, 4 Nev. 280; Stall v. Cincinnati, 16 Ohio St. 169; Browne v. Stamp, 21 Md. 328; Holder

(a) Thus where the petition alleged that the land was purchased by a father in the name of his son, the circumstances relied on to rebut

the presumption of gift must be averred. Hoon v. Hoon, 126 Iowa, 391; Long v. King, 117 Ala. 423.

mere statements; and facts that only base a conjecture that the conditions of a resulting trust existed, are insufficient.2 (a) The certainty required, however, is only such as is sufficient to satisfy the jury of the existence of the trust; and it is error to charge that the "clearest and most positive proof" must be given. (b) For this purpose all competent evidence is admissible, as the admissions of the nominal purchaser and grantee in the deed, recitals in the deed and other proper documents, and even circumstantial evidence, as that the means of the nominal purchaser were so limited that it was impossible for him to pay

v. Nunnelly, 2 Cold. 288; Childs v. Gramold, 19 Iowa, 362; Cutler v. Tuttle, 19 N. J. Eq. 560; Parmlee v. Sloan, 37 Ind. 469; Phelps v. Seeley, 22 Grat. 573; Shepard v. Pratt, 32 Iowa, 296. [Holloway v. Wilkerson, 150 Ala. 297; Dooley v. Pinson, 39 So. 664 (Ala. 1905); Woodside v. Hewel, 109 Cal. 481; Marshall v. Fleming, 11 Colo. App. 515; Keith v. Miller, 174 Ill. 64; Francis v. Roades, 146 Ill. 635; McGinnis v. Jacobs, 147 Ill. 24; Jacksonville Bank v. Beesley, 159 Ill. 120; Pillars v. McConnell, 141 Ind. 670; Cunningham v. Cunningham, 125 Iowa, 681, 687; Malley v. Malley, 121 Iowa, 237; Logan v. Johnson, 72 Miss. 185; Reed v. Painter, 129 Mo. 674; Smith v. Smith, 201 Mo. 533; Carter v. Carter, 14 N. D. 66; Snider v. Johnson, 25 Or. 328; Cornman's Estate, 197 Pa. St. 125; Olinger v. Shultz, 183 Pa. St. 469; Fowler v. Webster, 180 Pa. St. 610; Brickell v. Earley, 115 Pa. St. 473; Reynolds v. Blaisdell, 23 R. I. 16; Gaines v. Drakeford, 51 S. C. 37; Chambers v. Emery, 13 Utah, 374; Parker v. Logan, 82 Va. 376; Spencer v. Terrel, 17 Wash. 514; Gilbert v. Lawrence, 56 W. Va. 281, 292.]

1 Heneke v. Floring, 114 Ill. 554; McKeown v. McKeown, 33 N. J. Eq. 384.

2 Railsback v. Williamson, 88 Ill. 497. [Holloway v. Wilkerson, 150 Ala. 297; Malley v. Malley, 121 Iowa, 237; Crawford v. Crawford, 77 S. C. 205.] Neyland v. Bendy, 69 Tex. 711.

(a) A mere statement of the title holder that he had used funds of his ward in the purchase of land is not sufficient evidence on which to base a resulting trust since it does not identify what land he had purchased with such funds. Garrett v. Garrett, 171 Mo. 155.

(b) It has been stated that a bare preponderance of the evidence is not sufficient, Cunningham v.

Cunningham, 125 Iowa, 681; Chambers v. Emery, 13 Utah, 374; and even that the necessary facts must be established beyond a reasonable doubt. Reed v. Painter, 129 Mo. 674; Reed v. Sperry, 193 Mo. 167. But these statements seem to go too far. See Doane v. Dunham, 64 Neb. 135; Burnett v. Campbell Co., 1 Tenn. Ch. App. 18.