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ingraft other or additional trusts upon the deed by proof of intention, unless upon a ground of fraud or circumvention. t And so, though it has b^en holden that the statute does not extend to
trusts of personality,(/) yet it seems clear, that if such trusts Trusts of
, . . personality,
are attempted to be created where there is a written instrument, not reached
the principle of law will be sufficient to oppose the admission of by „ sla" r . rl tute. But the
parol evidence,^') where it is at variance with the expressed or admission of
implied operation and intention of such instrument. But if there Paro1 ievi4" ... . . ence to m
is a real distinction between contradicting or adding to an instru- graft them
ment, and raising a trust upon it, it may be argued that as trusts "^n";*,.^TM1" of personality are out of the statute, evidence of intentions and ment, oppoidecLrations may be given to create this supervenient equity, ^j! l^wllcrule where the subject is personal estate ; though, perhaps, this is a refinement bordering upon entanglement, and has involved the great seal in some apparent contradiction with itself. It is certain, however, *that with regard to real estate, although where * [ 95 ] there is no instrument, and perhaps, in some cases where there is one, parol evidence of facts and circumstances, showing the relation and obligations of parties may be given to raise an equity by operation of law, yet no evidence of declarations or intentions, where the facts and circumstances are themselves insufficient, can be received either as a substantive or an auxiliary ground for the creation of a trust.(39)
One proposition, however, may be received as a standing rule If the intenin respect to this part of the subject—that any thing in writing, ~n ,tot).yTM" decisively marking the intention to create a trust, will be effec- sufficiently
tual without a formal declaration, either as a virtual declaration aPPe.'irs °y
to satisfy the requisition of the statute, or as the implication of a statute is satisfied with
(/ )Nab v. Nab, 10 Mod. 404. (^)Vide Fordyce e. Willis, 3 Bro. C. declaration?' R. 577.
(39)That a resulting trust shall not be suffered to be raised upon an instrument by parol proofs, is a proposition Well supported by the cases, where, upon a purchase, the money has been attempted to be proved to have been advanced, either in part or in the whole, by a party not named in the conveyance. Such parol evidence has always been rejected on the ground of its contradicting the instrument; see Kirk v. Webb, Prec. in Ch. 84. Newton v. Preston, ibid, 103. Gascoyne«. Thw'ing, 1 Vern. 366. Crop v. Newton, 2Atk.75.
trust upon grounds of equitable construction, to put the case wit;.in the exception: to which we may add, that though the principal instrument be without either expression or implication of a trust, yet a precedent, subsequent, or accompanying instrument may make the trust manifest, though itself no formal declaration. Accordingly, if J. S. devise lands to one, who is his heir at law, in fee, and gives several legacies, and then makes the devisee his executor also, desiring him to see his will performed according to the confii dence he had reposed in him, the testator's real estate is made liable; for it were needless to have devised the estate to his heir at law, unless he intended to make it chargeable with his debts and legacies.(A) And in the case of Nourse and another v. \ armouth,(') we have an instance of an effectual declaration *of trust, by words so inartificial as not to serve to limit an estate. Upon the same principle, a covenant to make conveyances, or to purchase lands to certain uses, has been deemed a sufficient declaration ot a trust, and binding upon the estate.(£) And so in Cianrickavd's case,(/) it was held that if A covenants with B for money, to do all acts which B shall require for assurance to B and his heirs, and levies a line to B, this covenant and tine shall give to B the whole knd.(40) And notwithstanding the cases stated in the note to Kales v. England,(w) and the case of Cunliffe v. Cuniiffe,(n) it is fully established, that words of desire, request, or recommendation, are sufficient to create a trust, if the property be certain, and the objects distinctly defined, and the recommendation or desire be not clearly meant to be subjected to the option or controul of the party.(o) We are to observe too, that, as a court of equity) 2 Vern. 228. (,) Fin. Rep. 159. (*) Blake ». Blake, 2 Bro. V. C. 350. (0 Hob. 275. (m) Prec. Ch. 200. («) Ambl. 636.
(o) Eales » England, Prec. Ch. 200. Harland v. Trigg, 1 Bro. C. R. V42. Malim v. Keighley, 2 Vez. jun. 333. Barrow v. Grecnough, t Vez. j«n. 152. Push man v. Filliter, 3 Vez. jun. 7. Hobart v. Countet* of Suffolk, 2 Vern. 645. Starkey v. Brooke, 1 P. Wits. 390.
(40) By the 4th and 5th Ann. c. 16, sect. 15, it is enacted, that all declarations or creations of uses or trusts of any fines, or common recoveries, manifested by a deed, alter the levying or suffering thereof, shall be as good in law as if the act of the 29 Car. 2. c. 3, had not been made; which provision was made to obviate doubts which appear to have been entertained as to the effect of the statute of fraud* on declt-' rations of uses, subsequent to the assurance made.
ty will not suffer justice to fail for want of an appointment of a trustee; if an estate be given by will to a corporate body, to sell for another's benefit, though the devise is void, yet the trust fastens itself upon the estate in the heir at law.(//)
•In the reports of the case of Lloyd v. Spillet,(9) Lord Hard- Of trusts a
wicke is represented to have used words tending to reduce the in- risingbvnpe.
* . 0 ration of law.
stances of trusts arising by operation of law, and, as such, except- * [ 97 ]
t,:l by the statute of frauds, to two, viz. where the conveyance has been taken ia the n^me of one man, and the purchase-money paid by another; and where the owner of an estate has made a voluntary conveyance of it, wherein he has declared a trust with regard to one part of the estate only, without expressing any as to the other part of it.(41) Some words probably accompanied and explained this observation of the Chancellor, (if the observation itself is not incorrec tly stated) which would, if they could be recovered, remove the difficulty which every reader of equity cases must nave in acceding to it. There would be no end of enume" rating ihe instances of these constructive trusts, or trusts arising by operation of law. Two or three shall be mentioned, and the reader shall be referred to the cases for others. If a trustee purchase lands with the trust-money, and take a conveyance to himself without declaring a trust, and recite or admit that the lands were bought with the trust-money, he will hold the lands in trust for the person entitled to the money.(42) On the same principle,
(p) Sonley e the Clockmaker's Company, 1 Bro. C. R. 81. (?) Bernardiston's Rep. in Chanc. 388, 2 Atk. 148.
(41 Bat this must be understood of a partial declaration of the trust for another person; for if a partial trust or use is limited to the grantor himself, it will prevent the resultancy of that part of tbe estate whereof no use is declared, as in the cases of Rawley v. Holland, Vin. 22- p. 189. Adams v. Savage, 2 Salk. 679.
(42) Deg Deg, 2 P. Wins. 412. But where a trustee purchases lands out of the profits of the trust estate, and takes the conveyance in his own name, though perhaps, if he cannot make other satisfaction, these lands may be sequestered, yet they cannot be decreed to be held in trust, any more than if A borrows money of B, and purchases land with it, such purchase can be held to be in trust for B. To construe it a resulting trust would be to contradict the deed. Mr. J. Powell cited the case of Walter de Chirton, Prec. in Ch. 88, who was the king's receiver, and who was found to have purchased lands with the king's
if a guardian or 'trustee for an infant renew a lease,(r) or if a mortgagee^*) whose mortgage was taken in the name of a trustee, purchase the equity of redemption in the name of the same trustee, without any declaration of trust, a trust results to the mortgagee in one case, and to the infant in the other: so it has been holden, that the grant of the next avoidance of a church to a person without his privity, is a resulting trust for the grantor.(<) Thus also, where there were three lessees under a church, arC one of them surrendered the old lease, and took anew one in his own name, it was holden a resulting trust for all the original lessees.(43) The cases in the margin exhibit other examples of the same trusts, of which the jurisdiction of courts of equity is so fruitful.(44)
* [ 99 ] *The editor(u) of Atkins's Reports, who has obliged the prooftlic risiiU- fession witn marly judicious comments, has illustrated the first ing trust, of Lord Hardwicke's two instances of a trust arising by operaconveyance tion of law wfthin the meaning of the statute, in a concise note, is taken in wherein the distinctions on this point are thus stated: " If the one man6and consideration money is expressed in the deed to be paid by the
(r) Lee v. Vernon, 7 Bi o. P. C. 432.
(*) Acherley r. Acherley, 4 bro. P. C. 67, et vid. 3 P. Wms. 250, n. A.
(r) D of Norfolk v. Browne, Prec. Ch. 80.
(a) Vide Lloyd v. Spillet, 2 Atk. 150 edit. Sanders, note 2.
money, to show that this was not held to be a resulting trust even in the ki'ig's case. He was of opinion, therefore, that the plaintiff could not be relieved, and the Lord Chancellor concurred with Mi.. J. Powell.
(43) Palmer T. Young, 1 Vern. 276, and see ex parte Grace, 1 Bos et Pull 376. See also Lystar v. Holland, I Vez. jun. 431. Contributions to the payment of the purchase-money by several parties in equal shares and proportions, where a lease is taken in the names of all, will turn the survivor into a trustee.
(44) Sonley v. the Clockroaker's Company, 1 Bro. C. R. 81. Stonehouse v. Evelyn, 3 P. Wms. 252. Robinson v. Taylor, 2 Bro. C R. 589. Spink v. Lewis, 3 Bro. C. R. 355. Digby v. Legard, 3 P. Wms. 22, notch Countess of Bristol v.Hungerford, 2 Vern. 645. Hutchins r. Lee, 1 Atk. 447. This last w;is a case of i.n implied trust, between an assignor and assignee of a lease; but it should seem that there cannot well be an implied trust between lessor and lessee : for every lessee is a purchaser by his contract and his covenants, and therefore it has hecn held, that if there is any trust intended, it ought to be declared in
'writing. Vide Pilkington *. Bayley, 7 bro. P. C. 526.
person in whose name the conveyance is taken, and nothing ap- t*ie purchase
, monev paid
pears in such conveyance to create a presumption that the pur- ov another.
chase-money belonged to another, then parol proof cannot be admitted after the death of the nominal fmrcliaser, to prove a resulting trust, for that would be contrary to the statute of frauds and perjuries; for which he cites the authorities which are mentioned in the margin.(x) But if the nominal purchaser, in his life-time, gives a declaration of, or confesses the trust, then it takes it out of the statute, for which he cites Ambrose v. Ambrose,(y) and Ryall f. Ryall.(z) So if it appears on the face of the conveyance, whether by recital, or otherwise, that the purchase wus made with the money of a third person, that will create a trust in his favour."(a)
It should seem, however, that this confession of the trust by the nominal purchaser, to countervail a declaiationin writing, and create a trust for the party advancing the money, cannot be established by a third person, but must be made under a judicial examination upon oath, or by the party's own answer in equity. This seems understood both in the case of Ambroses. Ambrose, and Ryall v. Ryall, above referred to; and appears to flow from the proposition before stated; for, during the life of the nominal •purchaser, no proof can be received of his parol confession, as *^ Lqq ^ not being the best existing evidence; and, after his death, it is mere parol evidence contradicting the deed, and not of strength to raise a resulting trust.(45)
(x) Kirk v. Webb, Prec. Ch. 84. Walter de Chilton's case, ibid, 88. Heron v. Heron, ibid, 163. Newton v. Preston, ibid, 103. Gascoyne v. Thwinlr, 1 Vern. 366. Hooper v. Eylcs, 2 Vern. 480. Crop. v. Norton, 2 Atk. 74. (y) 1 P. Wms. 321. (z) 1 Atk. 59.
(n) Kirk v. Webb, Prec. Ch. 84. Deg. v. Deg. 2 P. Wms. 412. Young v. Peachey, 2 Atk. 254.
(45) In Willis v. Willis, 2 Atk. 71, it is reported to have been said by the court, that there was another way of taking a case out of the statute, and that was by admitting parol evidence, to show the trust, from the mean circumstances of the pretended owner of the real estate, which makes it impossible for him to be the purchaser. But this case is not regularly reported, and as the reporter has only given us a short sentence, without the context, we may reasonably doubt its authen ticity.