Statute of
Frauds:

of Trusts.

declaration of trust with regard to personalty, Declarations Paterson v. Murphy, 11 Ha. 88; Dipples v. Corles, Ib. 183; Jones v. Lock, L. R., 1 Ch. 25; Moore v. Moore, L. R., 18 Eq. 474. And the statute does not apply to colonies planted before the Act was passed: 2 P. W. 75; Gardiner v. Fell, 1 J. & W. 22.

Uses.

What is a sufficient

trust.

Uses which are executed by the statute were said by Lord Hardwicke not to be within this clause: 1 P. Wms. 112; but in Lord Altham v. Earl of Anglesey, Gilb. Eq. Rep. 16; and in Roe d. Roach v. Popham, Doug. 25, it was held that a resulting use might be rebutted by parol. See cas. temp. Holt, 733. Uses seem to fall within the first section. See Wright v. Lord Cudogan, 2 Eden, 257.

It is not required by the statute that a trust declaration of should be created by writing, but that it shall be manifested and proved by writing. It is not necessary that the trustee should have been such from the first; it is sufficient if it appear at any time in writing under the hand of a person having a right to declare himself a trustee: Per Lord Alvanley in Forster v. Hale, 3 Ves. at p. 707. See Ambrose v. Ambrose, 1 P. Wms. 321; Ryall v. Ryall, Amb. 413; 2 Eden, 257; 12 Ves, 74; Davies v. Otty, 35 Beav. 540; Smith v. Matthews, De G., F. & J. 139. The trust may be proved, in the same manner as agreements under the 4th section, by letters or other detached and informal writings, clearly connected with each other and properly signed, and leaving no doubt as to all the terms of the trust Forster v. Hale, 3 Ves. 696; O'Hara v. Neill, 7 Br. P. C. 227; Stubbs v. Sargon, 2 Keen, 255; Childers v. Childers, 1 De G. & J. 482; Bentley v. Mackay, 15 Beav. 12. So a trust may be evidenced by a recital in a deed executed by the trustee : Deg v. Deg, 2 P. Wms. 412; or, formerly, by his answer to a bill, &c.: Hampton v. Spencer, 2 Vern. 288; 1 Atk. 59; Cottington v. Fletcher, 2 Atk. 155. As to declarations of trust in connexion with testamentary acts, and the effects of fraud in excluding the statute, see cases cited infra, tit. WILLS, and in Podmore v. Gunning, 7 Sim. 644.

Parol proof of trusts.

A trust may be proved by parol, notwithstanding

Statute of
Frauds:

the statute, if it be made out by written evidence that the person apparently entitled in equity is not Declarations really so; as in Cripps v. Jee, 4 Br. C. C. 472. See Leman v. Whitley, 4 Russ. 423.

of Trusts.

resulting

name of a person.

third

By the 8th section, trusts upon a conveyance Implied and which arise or result by the implication or construc- trusts. tion of law, or are transferred or extinguished by any act or operation of law, are excepted from the operation of the Act. One of the most obvious Purchase in instances of a resulting trust is where one man takes a conveyance of the legal estate, and another pays the money. "The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold, whether taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchasemoney. It is the established doctrine of a Court of Equity, that this resulting trust may be rebutted by circumstances in evidence." Per Eyre, C. B., Dyer v. Dyer, 2 Cox, 93. See Anon. 2 Vent. 361; 2 Vern. 67; Lewis v. Lane, 2 My. & K. 449. The rule as to resulting trusts applies to a joint advance and a conveyance to one only. See Wray v. Steele, 2 Ves. & B. 388; see also Palmer v. Young, 1 Vern. 276.

Purchase in

If a person is employed by another to Trusts by purchase an estate, and pays all the money himself, implication. there is no constructive trust within the 8th the name of section: Bartlett v. Pickersgill, 1 Cox, 15; 1 Eden, another. 515. See Rastel v. Hutchinson, 1 Dick. 44; O'Hara v. O'Neill, 2 Br. P. C. 39. But where a trustee purchases an estate with trust money, and takes the conveyance in his own name, and it appears on the face of the deed, or by writing under the trustee's hand, or even by mere parol evidence or implication, provided it is unquestionable, a trust will result in favour of the owners of the money: Deg v. Deg, 2 P. Wms. 412; Lane v. Dighton, Amb. 409; Sowden v. Sowden, 1 Br. C. C. 582; Parry v. Philips, 4 Ves. 108; Wilson v. Foreman, 2 Dick. 593. See 2 Fonbl. Eq. 119, n., 5th ed.; and infra, p. 337.

Statute of

Frauds:

of Trusts.

Payment of

money may

parol.

Where money is actually paid, then the trust Declarations arises from the payment of the money, and not from any agreement of the parties. And where a lease is granted at rack-rent to A., upon an understanding that B. is to have a joint interest with A., and no fine is paid, the subsequent payment of a moiety of the rent by B. does not raise a trust in his favour by implication: Riddle v. Emerson, 1 Vern. 108. But if A. takes a renewal in the name of B., and pays the fine, a trust results to A.: Maddison v. Andrew, 1 Ves. sen. 59. It is contended be proved by by Mr. Sanders (Uses and Trusts, Vol. I., p. 354, 5th ed.), that, in order to raise a trust of this kind, the fact of the ownership of the money should appear upon the face of the deed, either by a recital or by expressions which amount to a necessary implication or presumptive proof of it, or else that it should be admitted by the nominal purchaser by some writing sufficient to raise a trust within the 7th section; and he cites Kirk v. Webb, Pr. Ch. 84; Newton v. Preston, Id. 103; Denton v. Davis, 18 Ves. 499, of which authorities the two former seem to bear out his proposition, though the latter certainly does not; but it is conclusively established by numerous authorities that parol evidence is admissible for the purpose of raising a constructive trust see Weall v. Rice, 2 Russ. & M. 252; and this, whether the money is expressly stated in the conveyance to have been paid by the nominal purchaser or not. Thus, in Willis v. Willis, 2 Atk. with another's 71; Amb. 413, Lord Hardwicke said that he who paid the money must clearly prove the payment; but there is another way of taking a case out of the statute, and that is, by admitting parol evidence within the rules laid down in this Court, to show the trust from the mean circumstances in the pretended owner, which makes it impossible for him to be the purchaser. So, in Lench v. Lench, 10 Ves. 517, Sir W. Grant, M. R., said: "It is now settled that money may in this manner be followed into the land in which it is invested, and a claim of this sort may be supported by parol evidence." Again, in Wray v. Seele, 2 Ves. & B. 388, Sir T. Plumer,

Purchase

money.

Statute of

Frauds:

of Trusts.

V. C., directed an inquiry after the death of the nominal purchaser, it being stated that a part of Declarations the money had been advanced by another person, and an account in the handwriting of the nominal purchaser been produced. See also Ex parte Vernon, 2 P. Wms. 549; Ryall v. Ryall, 1 Atk. 59; Amb. 413; Lane v. Dighton, Amb. 409; Bartlett v. Pickersgill, 1 Cox, 15; and see Sir J. Peachey's case, Sugd. Vend. 702, n.

But very clear evidence is requisite to establish a Implied trust of this kind. Evidence of declarations by the trusts. deceased trustee, where there are no corroborating circumstances by any writing under his hand, is in all cases most unsatisfactory, on account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the mistake or failure of recollection may totally alter the effect of the declaration. In most of the cases there has been at least something in writing; some account by which it appeared that the fund was laid out: Per Sir W. Grant, 10 Ves. 517. See Gascoigne v. Thwing, 1 Vern. 366; Cooth v. Jackson, 6 Ves. 39; Groves v. Groves, 3 Y. & J. 163, 170.

trust upon a partial decla

ration of

trust.

A trust arises by implication, where, upon a con- Resulting veyance or devise, a trust is declared only as to part, which is an implied exclusion of the grantee from any further benefit, and then what remains results to the grantor or his representatives: Lane v. Dighton, Ambl. 411; 2 Atk. 150; Barn. 388; Davidson v. Foley, 2 Br. C. C. 203; Langham v. Nenny, 3 Ves. 467. See Cook v. Hutchinson, 1 Keen, 42.

conveyance

sideration.

The analogy between resulting uses and trusts is No resulting not quite so strict as might be inferred from the trust upon a remarks of Eyre, C. B., in Dyer v. Dyer (ante, p. without con333); for although, upon a conveyance at common law, without any consideration expressed, or use declared, a use will result to the grantor, a trust will not result upon a conveyance or lease made without consideration, or, which is the same thing, upon a nominal consideration: Lloyd v. Spillet, 2 Atk. 150; Barnard, 387; Young v. Peachy, 2 Atk. 257; Lady Bellasis v. Compton, 2 Vern. 294; Leman v. Whitley,

Frauds:

of Trusts.

Statute of 4 Russ. 423 (a). And where a valuable consideraDeclarations tion is expressed, and the evidence shows that it was not paid, nor meant to be paid, equity will not raise a constructive trust of the land in favour of the grantor, but only gives him a lien upon it for the money: Leman v. Whitley, ubi supra. It follows that, unless there is fraud or mistake, parol evidence is not admissible to raise a trust in cases of this kind. In Birch v. Blagrave, Ambl. 264, a trust was held to result upon a conveyance by a father to his daughter, expressed to be in consideration of natural love and affection.

Trusts im

Another class of cases referred by some writers to plied against the head of trusts arising by implication of law, is

volunteers,

purchasers, &c. with notice.

where the trust already exists in respect of the subject-matter to which it relates; but by the transfer of the subject to another person, without any declaration of trust, the trust is raised by implication against such person. See 1 Sand. Uses, 350, 5th ed. Such are the cases of a devolution of the property from the trustee by act of law upon his real or personal representative, assignees in bankruptcy, &c.; a forfeiture; a transfer by the trustee to a volunteer, with or without notice of the trust; a sale, lease, or other alienation which amounts to a breach of trust, to a purchaser for value, with notice. As the fact of notice or want of consideration may always be made out by parol, these are properly instances of trusts which may arise by implication, without writing. But it is unnecessary to take any particular note of trusts of this kind, because it is clear that they are not included in the 8th section, inasmuch as the 7th section, to which the 8th is appended, contemplates exclusively the declaration or creation of trusts in respect only of the property upon which they attach in the first instance, and

(a) In the case of The Duke of Norfolk v. Browne, Eq. Ab. 381, pl. 4, Pr. Ch. 80, the plaintiff's father had executed a grant of the next avoidance of a church to the defendant's father, who was a clergyman, and a person much intrusted by him; and the grantee knew nothing of the grant, and, being examined in a cause, deposed, that he did not purchase it of the duke; and it was held to be a resulting trust for the grantor.