Chancery for his remedy; where the trustee was compelled to account with him for the rents and profits of the term; and to assign it to him, when required*. How Trusts may be de clared. 35. By the statute 29 Cha. II. c. 3. § 7. it is enacted, "that all declarations or creations of trusts or confidences, of any lands, tenements, or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust; or by his last will in writing; or else Tit. 38. c. they shall be utterly void and of none effect." 36. A declaration of trust requires no particular form, provided it be proved or manifested in writing: therefore a letter from a trustee, disclosing the trust, will be sufficient. In a modern case Lord Alvanley, M. R. said it Forster v. Pitfal, was not required by the statute that a trust should 3 Ves. Jun. be created by writing; for the words of the statute 696. were very particular in the clause respecting declarations of trust. It did not by any means require that all trusts should be created only by writing; but that they should be manifested and proved by writing. Plainly meaning that there should be evidence in writing, proving that there was such a trust. Therefore unquestionably it was not necessarily to be created by writing, but it must be evidenced by writing; then the statute was complied with, and the great danger of parol declarations, against which the statute was intended to guard, was entirely taken away; it 12 Ves. 74. must however be proved in toto; not only that there was a trust, but what it was. 10. * There may be a trust of a rent, as well as of land; of which an account will be given in Title XXVIII. Rents. Hampton v. 37. Where a trust is confessed in an answer in Chancery, it will be sufficient. 38. A. in consideration of 80 l. conveyed land to 2 Vern. 288. B. absolutely. A. brought a bill to redeem. B. by his answer insisted that the conveyance was absolute; but confessed, that after the 801. was paid with interest, it was to be in trust for the plaintiff's wife and children. This was held to be a sufficient declaration of trust. Cottington v. Fletcher, 2 Atk. 155. Resulting or implied Trusts. 1 P. Wnis. 112. Contract for 39. 39. Besides the above-mentioned direct modes of creating trust estates, there are several other cases where trusts arise from the evident intention of the parties, and the nature of the transaction; which are enforced in equity, and usually called resulting trusts, or trusts by implication. These are expressly saved by a clause in the statute of frauds, § 8, by which it is provided, "that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise, or result by implication, or construction of law, or be transferred or extinguished by an act or operation of law; then and in every such case, such trust or confidence shall be of the like force and effect, as the same would have been if the statute had not been made." It has been held by Lord Cowper, that this clause must relate to trusts, and equitable interests, and cannot relate to a use, which is now a legal estate. 40. Where a contract is entered into for the a Purchase, purchase of a real estate, a trust immediately results to the purchaser; the vendor becomes a trustee for him till a conveyance of the legal estate is made; Waterworth, and his interest becomes personalty, consisting merely of a right to the purchase money. 9 Mod. 78. Ripley v. 7 Ves. 425. Purchase in the Name of a Stranger. 41. Where an estate is purchased in the name of one person, and the consideration is given or paid by another; there is a resulting trust in favour of the person who gave or paid the consideration. a 2 Vent. 361. 1 Vern. 109. 2 Atk. 71. 42. Thus it was resolved by the Court of Chancery Anon. in 35 Cha. II. that where a man bought land in another's name, and paid the money, it would be trust for him, who paid the money, though no deed declaring the trust; for the statute 29 Cha. II. did Dyer v. Dyer, 1 Watk. Cop. not extend to trusts raised by operation of law. 150. 216. 43. Lord Hardwicke has said, that where a pur- 9 Mod. 235. chase is made, the purchase money being paid by one, and the conveyance taken in the name of another, there was a resulting trust for the person who paid the consideration. This was where the whole consideration moved from such person. But he never knew it, where the consideration moved from several persons; for that would introduce all the mischiefs which the statute of frauds was intended to prevent. Suppose several persons agreed to purchase an estate in the name of one, and the purchase money by the deed appeared to be paid by him only; he did not know any case where such persons should come into the Court of Chancery, and say, they paid the purchase money; but it was expected there should be a declaration of trust. 15 Ves. 43. 44. In all cases of this kind the payment of the Finch v. money must be proved by clear and undoubted Finch, evidence; for otherwise a court of equity will not interfere. But evidence of any kind, even parol evidence, is admissible to rebut a resulting trust, and to shew a purchaser's intention, that the estate should belong to the person in whose name the conveyance was taken; upon the same principle that Tit. 11. c. 4. parol evidence is admissible to rebut a resulting use. 45. Thus, in a case in 1693, the counsel contended, Bellasis v. that where there was an express trust declared, 2 Vern. 294. Compton, Lamplugh v. Purchase with Trust Money. Ryal v. Ryal, though but by parol, there could be no resulting trust; for resulting trusts were saved indeed by the statute of frauds, but only as they were before that act. Now a bare declaration by parol, before the act, would prevent any resulting trust. The Court seemed to be of that opinion. 46. A father purchased lands in the names of his younger son and nephew ; but in the conveyance the whole purchase money was mentioned to be paid by the father; who took the profits during his life, and died, leaving the younger son an infant. The eldest son brought his bill against the younger son, and the nephew; insisting that the money being mentioned in the deed to have been paid by the father, this made the defendants trustees for the father; consequently for the plaintiff. It was resolved that parol evidence should be admitted to show the intention of the father, that this conveyance was for the benefit and advancement of the younger son: because it concurred with the conveyance, and was only to rebut a pretended resulting trust. 47. It was formerly doubted, whether in the case of a purchase made by a trustee with trust money, a resulting trust would arise to the person entitled to the money; because that would be to contradict the deed by parol evidence, in direct opposition to the statute of frauds. It has however been since determined, that evidence aliunde is admissible to show that the purchase was made with trust money. And where that circumstance has been clearly proved, a trust will result to the owner of the money. 48. A bill was brought by the legatees of John Ryal against the executrix and heir at law of Jonathan Ryal, for satisfaction out of his assets, and as against the heir at law, to have satisfaction out of an estate purchased by Jonathan Ryal, as the plaintiff insisted, with the assets of John Ryal the original testator. The defendant the executrix admitted, that as to one particular estate, it appeared by her testator's papers, that it was purchased with 2501. of the testator's money: proof was read that Jonathan Ryal, after the testator's death, purchased several estates; and before that time was a poor person, not able to pay for them out of his own money. The counsel for the plaintiff insisted that the heir at law was to be considered as a trustee for them, as far as the estate appeared to be purchased with the assets of John Ryal. On the other side it was contended that money could not be followed into land. Lord Hardwicke said, the Court had been very cautious in following money into land, but had done it in some cases. No one would say but the Court would, if it was actually proved that the money was laid out in land. The doubt with the Court in these cases had been on the proof. There was difficulty in admitting proof; parol proof might let in perjury: but it had always been done, when the fact had been admitted in the answer of the person laying it out. If the executor of John Ryal had been a party, and admitted it, there would have been no doubt; but the admission was by his representative, which, though it did not bind the heir, was ground for inquiry. The way of charging the heir was by considering him as a trustee; as when lands were purchased by one, in the name of another, it was a resulting trust by law, and out of the statute; and upon inquiry a little would do to make it a charge pro tanto. |