Davidson, 7 Abb. Prac. (N. S.) 439; Hill v. Hill, 10 N. Y. Wkly. Dig. 239; Little v. Webster, (Sup.) 1 N. Y. Supp. 315; Southard v. Curley, 134 N. Y. 148 (31 N. E. Rep. 330; 16 L. R. A. 561); Henkle v. Assurance Co., 1 Ves. Sr. 317; Bold v. Hutchinson, 5 De Gex, M. & G. 558; U. S. v. Munroe, 5 Mason 572 (Fed. Cas. No. 15,835); Coal Co. v. Doran, 142 U. S. 417, 435 (12 Sup. Ct. Rep. 239); Coale v. Merryman, 35 Md. 382; Lyman v. Little, 15 Vt. 576; Miner v. Hess, 47 Ill. 170; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Newton v. Holley, 6 Wis. 592; Linn v. Barkey, 7 Ind. 69; Leitensdorfer v. Delphy, 15 Mo. 160 (55 Am. Dec. 137); Jackson v. Magbee, 21 Fla. 622; Giles v. Hunter, 103 N. C. 194 (9 S. E. Rep 549); Busby v. Littlefield, 31 N. H. 193; Fritzler v. Robinson, 70 Iowa 500 (31 N. W. Rep. 61); Weidebusch v. Hartenstein, 12 W. Va 760; Rowley v. Flannelly, 30 N. J. Eq. 612; Hinton v Insurance Co., 63 Ala. 488; Muller v. Rhuman, 62 Ga. 33?; Mosby v. Wall, 23 Miss. 81 (55 Am. Dec. 71); Fessenden v. Ockington, 74 Me. 123; Bodwell v. Heaton, 40 Kan. 36 (18 Pac. Rep. 901; Cox v. Woods, 67 Cal. 317 (7 Pac. Rep. 722).

RESULTING TRUSTS.

EPITOME OF CASES.

Sec. 773. Implied trusts-Matters ex post facto. No trust can be implied in favor of the grantor of land by deed operating under the statute of uses, which contains the usual declaration of uses in favor of the grantee. In the absence of fraud in the procuration of a deed of conveyance of land, fraud cannot be predicted of a mere refusal of a grantee to perform a parol promise, not proven by any writing, to hold the same in trust for the grantor. Lovett v. Taylor, 54 N. J. Eq. 311 (34 Atl. Rep. 896). The court say: "The trust must result from the facts as they existed at the date of the transaction. It cannot arise from matters ex post facto. Cutler v. Tuttle, 19 N. J. Eq. 519; Tunnard v. Littell, 23 N. J. Eq. 264; Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299; Krauth v.

Thiele, 45 N. J. Eq. 407 (18 Atl. Rep. 351); Whitley v. Ogle, 47 N. J. Eq. 67 (20 Atl. Rep. 284). It is also clear that the facts and circumstances out of which the trust arises may be proven by parol. It is also clear that it must arise out of facts and circumstances, as distinguished from a mere parol promise or contract. Browne, Stat. Frauds, §§ 95, 499, and cases cited; 3 Reed, Stat. Frauds, § 899; Montacute v. Maxwell, 1 P. Wms. 618, where Lord Macclesfield says: 'Where there is no fraud, only relying upon the honor, word, or promise of the defendant, the statute makes those premises void. Equity will not interfere.' And Mr. Reed (§ 899) says that constructive trusts never arise from the agreement that there shall be such a trust.' And the supreme court of Illinois, in Williams v. Brown, 14 Ill. 200, said tersely: 'No contract between parties can make a resulting trust.' And Chancellor Williamson, in Baldwin v. Campfield, 8 N. J. Eq. 891, at page 892, declares the same doctrine. He says: 'I need not stop here to show that no relief can be afforded upon this bill upon the ground of any parol agreement between the parties. Trusts are express and implied or resulting trusts. An express trust. must be in writing. A resulting trust is a trust which is raised or created by the act or construction of law. A trust created by the act of the parties is an express trust.' This must be so upon principle, and to hold otherwise is to disregard the statute of frauds."

Sec. 774. Does not arise out of an oral agreement or inadequacy of consideration. Where, upon the purchase of land at a sheriff's sale by two parties who bid jointly and each paid one-half of the price, the conveyance was executed to one alone upon an oral agreement that he should hold it for the equal benefit of himself and the other, it was held that a resulting trust in the land arose out of the payment of the one-half of the price and not an express trust depending upon the oral agreement. Tynan v. Warren, 51 N. J. Eq. 402 (34 Atl. Rep. 1065). The voluntary conveyance of land by the heir of a decedent on the representation that it was neces- ' sary in order to settle the estate without litigation and upon the reliance of the grantee's promise that he would pay for the same or reconvey it upon the settlement of the estate,

does not create a resulting trust. Mayfield v. Forsyth, 164 Ill. 32 (45 N. E. Rep. 403). Where a deed is perfectly executed and is intended to operate at once, no trust will result merely from the want or inadequacy of consideration unless the attendant circumstances show that it was not

intended the grantee should take beneficially. Morrell v. Miller, Ore. (43 Pac. Rep. 490). Citing, 10 Am. & Eng. Ency. Law, 56, Philbrook v. Deland, 29 Me. 410.

Sec. 775. Trusts arising from payment of purchase money. Where land is purchased and paid for by one person, and the conveyance is taken to another, the law will raise by implication a trust for the benefit of the former. But if the person in whose name the conveyance is taken is the wife of the person who pays the purchase money, the prima facie presumption is that a gift was intended, and in such case no resulting trust will arise. The presumption in each case is one of fact, as to intention, and not of law, and may be rebutted by competent evidence, written or verbal, direct or circumstantial. The acts and declarations of the husband which accompany the transaction, so as to be a part of the res gestae, are admissible to show his intention in making the gift or settlement, and to raise a resulting trust. But the prima facie presumption that a gift was intended has become a wellestablished rule of property, and requires, to rebut it, clear and convincing evidence; otherwise the ownership will be left where the conveyance has placed it. Deck v. Tabler, 41 W. Va. 332 (23 S. E. Rep. 721; 56 Am. St. Rep. 837). One who simply lends a purchaser money with which to pay for land acquires no interest in the land. Hitt v. Applewhite,

Miss. (20 So. Rep. 161). An enforcible resulting trust may arise in favor of one who pays deferred payments of the purchase price under an agreement with the original purchaser that the party making such payment is to have the land on account thereof, made before execution of the conveyance. Moore v. Moore, 74 Miss. 59 (19 So. Rep. 953). See opinion for extensive collation of authority. Where one partner purchases real property with partnership assets and takes the title thereto in the name of his wife, without the consent of he other partner, a trust results to the partnership and its

creditors. Claflin v. Ambrose, 37 Fla. 78 (19 So. Rep. 628). A resulting trust will not be enforced in favor of one who furnishes money to purchase property at a tax sale where the effect of the transaction would be to confer title on the claimant in violation of the trust relations sustained by him to others. Snider v. Udell Woodenware Co., 74 Miss. 353 (20) So. Rep. 836). Where, in a purchase of land, the consideration is paid by one, and the conveyance is made to another, the presumption is that the latter holds the title in trust for the former. But this presumption is not conclusive. It may be rebutted by evidence which satisfactorily shows that it was not the intention of either party that the beneficial interest should be in the party paying. Zimmerman v. Barber, 176

Pa. St. 1 (34 Atl. Rep. 1002).

Sec. 776. Payment of purchase money-Trust in favor of wife. The right of a wife to enforce a resulting trust in lands the title to which was held by her deceased husband, on account of her payment of part of the purchase price is prior to the right of his creditors, where she has acted in good faith and it does not appear that they were induced to give credit to the deceased husband by any act, conduct or admission upon her part. Murphy v. Clayton, 113 Cal. 153 (45 Pac. Rep. 267). A resulting trust does not arise in favor of a wife who turns over to her husband money, without any agreement as to its investment, which he subsequently invests in real estate, taking title in his own name but representing to her that he had invested it in the land for her. Nashville Trust Co. v. Lannom's Heirs, Tenn. (36 S. W. Rep. 977). Where a married woman purchased real estate and caused the same to be conveyed to her brother, upon a mutual understanding between all the parties to the transaction, in order that she might dispose of the property without the control of her husband, a trust resulted in her favor.

Reeves v. Evans, N. J. Eq. (31 Atl. Rep. 477). Where a wife permits her husband to invest her money in real estate, the title to which he takes in his own name without her consent, even though he does so innocently, a trust results in her favor which may be established by parol proof. This is put upon the ground that "the nominee in the title deeds becomes

trustee for him who paid the money. The ownership of the money which purchased draws to itself the beneficial or equitable interest in the estate. And such equitable title, though resting generally in parol proof, is expressly exempted from the statute of frauds and perjuries." Lloyd v. Woods, 176 Pa. St. 63 (34 Atl. Rep. 926).

Sec. 777. Trust in favor of wife-Statute construed. The New York Revised Statute (8th Ed.) Vol. 4, p. 2437, § 51, provides, "Where a grant for a valuable consideration shall be made to one person, and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section." Section 53 provides, "The provisions of the preceding fifty. first section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.” Construing and applying this statute it is held that a wife cannot enforce a resulting trust in land conveyed to her husband without her consent, she having furnished one-tenth of the purchase price, on an agreement that the land should be conveyed to her. Schierloh v. Schierloh, 148 N. Y. 103 (42 N. E. Rep. 409). The court say: "Conceding that there was a promise on the part of the husband to take the deed in the wife's name, it was a promise merely; and, in taking the deed in his own name, he may have violated that promise, but it was not in violation of any trust, within the meaning of the statute. The exception in the fifty-third section applies in favor of a person who pays the consideration. That means the whole consideration, and not, as in this case, a part of it. The defendant advances less than the tenth part of the consideration, and yet it is claimed that the whole equitable estate vested in her. The payment by the wife of a part of the consideration for the conveyance to the husband does not vest in her any estate in the land. Niver v. Crane, 98 N. Y. 40;