them (1). And therefore, if A sold an estate to C, and the considerazion was expressed to be paid by B, and the conveyance made to B, the Court would allow parol evidence to prove the money paid by C (2).

6. Where the evidence is merely parol, although it is clearly admissible, yet it will be received with great caution (3). Evidence of naked declarations made by the purchaser himself is, as Sir William Grant observed, in all cases, most unsatisfactory evidence, on account of the facility with which it may be fabricated, and the *impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration (4).

7. So Lord Hardwicke laid it down that parol evidence might be admitted to show the trust, from the mean circumstances of the pretended owner of the real estate or inheritance, which makes it impossible for him to be the purchaser (n).

8. In the late case of Leman v. Whitley, it was held that where an estate is conveyed by the owner to another as a purchaser, although he is really only a trustee, the nominal seller cannot by parol evidence alone make out a trust for himself, but he will have a lien on the estate for the purchase-money (o) (5).

9. But if there is some written evidence inconsistent with the fact that the supposed purchaser was the actual purchaser, further evidence by parol is admissible to prove the truth of the transaction (p) (6).

10. An express trust, although by parol only, will prevent the resulting trust (q); because resulting trusts are left by the statute

(n) Willis v. Willis, 2 Atk. 71; and see Ryall v. Ryall, 1 Atk. 59; Ambl. 413; and Lench v. Lench, 10 Ves. jun. 511.

(0) 4 Russ. 423, sed qu.

(p) Cripps v. Jee, 4 Bro. C. C. 472; see 4 Russ. 426, 427.

(9) Lady Bellasis v. Compton, 2 Vern. 294. See Lord Altham v. the Earl of Anglesea, Gilb. Eq. Rep. 16; Roe v. Popham, Dougl. 25.

(1) The statute of frauds is never allowed as a protection to frauds. Jenkins v. Eldredge, 3 Story C. C. 183.

(2) Ante, 909, in notes.

(3) Boyd v. M'Lean, 1 John. Ch, 582; Botsford v. Burr, 2 ib. 409, 415; Freeman v. Kelly, 1 Hoffman, 90, 93, 98; Jackson v. Moore, 6 Cowen, 706, 726; Jackson v. Bateman, 2 Wendell, 570, 573; Carey v. Cullan, 6 B. Munroe, 44, 45. (4) See Malin v. Malin, 1 Wendell, 626; Harder v. Harder, 2 Sandford, 17; Smith v. Burnham, 3 Sumner, 435.

(5) In reference to Leman v. Whitley, Mr. Justice Story said, in Jenkins v. Eldredge, 3 Story, C. C. 289:-"I confess I never felt satisfied with that decision, and should have great difficulty in following it, even if there were no authorities, which seem fairly to present grounds for doubt." See Philbrook v. Delano, 29 Maine, 413, 414.

(6) See Jenkins v. Eldredge, 3 Story, C. C. 289; Morris v. Nixon, 17 Peters, 109; S. C. 1 Howard, (U. S.) 118; Carter v. Palmer, 11 Bligh, 397, 418, 419; Rathbun v. Rathbun, 6 Barbour Sup. Court Rep. 107, 108.

of frauds and perjuries as they were before; and, previously to the act, a bare declaration by parol would prevent any resulting trust. Besides, an equitable presumption may be rebutted by parol evidence (r); for, as Lord Mansfield has observed, an equitable presumption is only a kind of arbitrary implication raised, to stand until some reasonable proof brought to the contrary (1).

11. Therefore parol evidence will be admitted to prove the purchaser's intention, that the person to whom the conveyance was made should take beneficially; and if satisfactory, he will be entitled to the estate (s); but the proof rests upon him to show that the man from whom the consideration moved did not mean to purchase in trust for himself, but intended a gift to the stranger (t).

12. Where a man merely employs another person by parol, as an agent to buy an estate, who buys it for himself and denies the trust, and no part of the purchase-money is paid by the principal, and there is no written agreement, he cannot compel the agent to *convey the estate to him, as that would be directly in the teeth of the statute of frauds (u) (2).

13. And although the agent be afterwards convicted of perjury in denying the trust, yet that will not enable the Court to decree a performance in specie (x); and, therefore, as the principal cannot

(r) Langfielde v. Hodges, Lofft, 230; Rider v. Kidder, 10 Ves. jun. 360.

(s) Taylor v. Alston, cited in Dyer v. Dyer, Watk. Copyh. 216; S. C. MS.; Goodright v. Hodges, ibid. 227; Lofft, 230; 2 East, 534, n.; Maddison v. An

drews, 1 Ves. 57; Edwards v. Edwards, 2 You. & Coll. 123.

(t) Sce 3 Ridg. P. C. 178.

(u) Bartlett v. Pickersgill, Burr. 2255; 4 East, 577, n. (b); 1 Eden, 515. See Rastel v. Hutchinson, 1 Dick. 44. (x) Bartlett v. Pickersgill, ubi sup.

(1) A resulting trust may be rebutted or discharged by parol evidence. Page v. Page, 8 N. Hamp. 187; Botsford . Burr, 2 John. Ch. 405, 416; Steere v. Steere, 5 John. Ch. 1; Squire v. Harder, 1 Paige, 494, 495; Phillips v. Cramond, 2 Wash. C. C. 441; White v. Carpenter, 2 Paige, 218, 265; M'Guire v. M'Gowen, 4 Desaus. 487; Elliott v. Armstrong, 2 Blackf. 199, 213; Jackson v. Feller, 2 Wendell, 465; Malin e. Malin, 1 Wendell, 625.

(2) 2 Story Eq. Jur. §1201 a; Smith v. Burnham, 3 Sumner, 462; Botsford v. Burr, 2 John. Ch. 405; Freeman v. Kelly, 1 Hoffman, 90; Pinnock v. Clough, 16 Vermont, 501, 506, 509; Dorsey v. Clarke, 4 Har. & John. 551, 557; Fischli v. Dumaresly, 3 Marsh. 23; Thompson v. Branch, 1 Meigs, 390; Ensley v. Balentine, 4 Humphreys, 233; Peebles v. Reading, 8 Serg. & Rawle, 484, 492; Jackman v. Ringland, 4 Watts & Serg. 149, 150. But if one undertakes to procure a deed of land for another, who pays the consideration therefor in accordance with a previous agreement, but fraudulently takes the conveyance to himself, such agent may be compelled by bill in Equity to convey the land to him who made the contract and paid the consideration. Pillsbury . Pillsbury, 17 Maine, 107; See Sweet v. Jacocks, 6 Paige, 355; Perkins v. Hayes, 1 Cooke, 166; Botsford v. Burr, 2 John. Ch. 405; Jenkins . Eldredge, 3 Story C. C. 289, 290; Carter v. Palmer, 11 Bligh, 597, 418, 419; Lees e. Nutall, 1 Russ. & My. 53.

avail himself, in any civil proceeding, of the conviction of the agent, he is a competent witness to prove the perjury (y).

14. In Crop v. Norton (≈), Lord Hardwicke appears to have been of opinion, that this doctrine of resulting trust only extended to cases where the whole consideration is paid by one person, and the conveyance taken in the name of the other. He said, "this is where the whole consideration moves from such person; but I never knew it where the consideration moved from several persons; for this would introduce all the mischief which the statute of frauds was intended to prevent. Suppose several persons agree to purchase an estate in the name of one, and the purchase-money appears to be paid by him only, I do not know any case where such persons shall come into this Court, and say they paid the purchase-money; but it is expected there should be a declaration of trust."

15. In the case of Wray v. Steel, the point called for a decision, and Sir Thomas Plumer, Vice-Chancellor, following the true principle, decided in favor of the resulting trust. What, he asked, is there applicable to an advance by a single individual that is not equally applicable to a joint advance under similar circumstances (a) (1)?

II. Where the Purchase is in the Name of a Child.

16. Before the statute of uses, if a father made a feoffment to a stranger without any consideration, the law raised an use by implication to himself; but if he made a feoffinent to his son, no use arose to the father by implication; because the blood, which is a sufficient consideration, fixed and settled the estate in the son. And herein the law of trusts doth (as it ought to do) agree with the law of uses before the statute of H. 8. (b).

17. Therefore, if a father purchase in the name of a child, al

(y) The King v. Boston, 4 East, 572. See Fell v. Chamberlain, 2 Dick. 484, supra, p. 138; and see the King v. Dalby, Peake's Ca. 12, and the cases cited in

the note.

(*) 9 Mod. 233.

(a) 2 Ves. & Beam. 388.
(b) See Rep. t. Finch, 341.

(1) And the resulting trust in favor of each, will correspond with the sum of money advanced by each. Brothers v. Porter, 6 B. Monroe, 106, 107, 108; Ross v. Hageman, 2 Edwards, 373; Larkins v. Rhodes, 5 Porter, 196. See Bogert v. Perry, 17 John. 351; Jackson v. Bateman, 2 Wendell, 570, 573; Jenkins v. Eldredge, 3 Story, C. C. 183.

though *illegitimate (c), who is without a provision (d), or in the joint names of such a child and of another person (e), it will not be deemed a resulting trust for the father, but a gift or advancement for the child (ƒ)(1); because a father is under an obligation of duty and conscience to provide for his child in such case. And if the father die without having paid all the purchase-money, his personal estate must pay it for the benefit of his child (g).

18. Where, by the custom of a manor, copyholds are granted for lives successive, it has been holden, that if the father pay the fine, a grant to children, as nominees, shall not be an advancement for them, but a trust for the father (h), and there seems some ground to support this distinction; because the father could not have taken the whole estate in his own name.

19. But this decision has been over-ruled, and it is now settled, that such a purchase is, upon the general rule, an advancement for the children, and not a trust for the father (i), where the grant is immediate to the children, or even to the father for their lives, if they can, according to the custom of the manor, take at law under such a grant (k): nor is it material that the purchase is of a reversion expectant upon the death of a stranger (1).

20. A purchase by a papist incapable of purchasing, in the name of a protestant son, was considered a stronger case for an advancement than a purchase by a protestant parent; because otherwise a constructive trust prohibited by statute would have been raised (m).

21. It has already been observed, that to make it an advancement, the child must be unadvanced; but an advancement in part

(c) Beckford v. Beckford, Lofft, 490; Fearne's Posthuma, 327; Fonblanque's n. (1) to 2 Trea. Eq. 127, 2d edit.

(d) Elliot v. Elliot, 2 Cha. Ca. 231; and see Rep. t. Finch, 341.

(e) Lamplugh v. Lamplugh, 1 P. Wms. 112.

(f) Lady Gorge's case, 3 Cro. 550, cited; Lord Grey v. Lady Grey, 1 Cha. Ca. 296; 2 Swanst. 594; Mumma v. Mumma, 2 Vern. 19; Shales v. Shales, 2 Freem. 252; 1 Eq. Ca. Abr. 382, pl. 9; Anon. 2 Freem. 128, pl. 151; Taylor v. Taylor, 1 Atk. 386. See Hill v. Gomme, 1 Beav. 540.

way's P. C. 106. See Redington v. Redington, 9th July 1805, printed case House of Lords.

(h) Dickenson v. Shaw, cited in Dyer v. Dyer, Watk. Copyh. 216; S. C. MS.; see Skeats v. Skeats, 2 You. & Coll. C. C. 9.

(i) Dyer v. Dyer, ubi sup. ; and see Swift v. Davis, 8 East, 354, n.

(k) See Right v. Bawden, 3 East, 260; Smartle v. Penhallow, Lord Raym. 994.

(1) Finch v. Finch, 15 Ves. jun. 43. (m) Redington v. Redington, 3 Ridg. P. C. 106. See ex parte Houghton, 17 (9) Redington v. Redington, 3 Ridg- Ves. jun. 251; 10 Geo. 4.

(1) See Page v. Page, 8 N. Hamp. 187; 2 Story Eq. Jur. §1202, §1203; Partridge v. Havens, 10 Paige, 618, 626; Stanley v. Brannon, 6 Black f. 194, 195; Dennison v. Gochring Barr, 180, 182; Sidmouth v. Sidmouth, 2 Beavan, 447.

is not material (n), and a child having only a reversion expectant upon a life-estate, will be considered as unadvanced (o); *and even if the child be advanced, yet if the father consider him unadvanced, that will be sufficient (p).

22. If the child is already provided for, and the father did not consider him unadvanced (q), or if the father consider the child, from the first, as a trustee for him, he will be held to be so (r) (1); but the proof of this lies on the side of the person wishing to defeat the child's claim; and it seems, that although parol evidence of verbal declaration is admissible in support of the deed, it is inadmissible to create a trust against it (s).

23. In Swift v. Davis (t), where a father, the sole purchaser of an estate for three lives, who would take successive, put in the lives of himself and his two sons; and at the same court obtained a license from the lord to himself and his mother (who had had her widowhood right in the copyhold) to lease for seventy years, Lord Kenyon laid it down, that in such a case, if the father afterwards grant a lease by way of mortgage pursuant to such license to lease, and there be a custom in the manor for the first taker to dispose of the estate as against the other lives, such custom may so far operate as to divest the legal estate of the lives in reversion, and give it to the lessee. Or, if there were any doubt of that, or if the license of the lord might be construed to extend only to the first taker of the new copy jointly with his mother, and the first taker alone executed such license after her death, yet a court of equity, even if the surviving life (the son) succeeded at law on his strict legal title, would make the son, the surviving life, convey to his father's lessee, and pay all the costs in law and equity.

24. So a surrender by the father to the use of his will immediately after the grant makes the son a trustee for the father (u). 25. Possession by the father, during the infancy of his child (x),

(n) See Rep. t. Finch, 326.

(0) Lamplugh v. Lamplugh, 1 P. Wms. 111.

(p) Redington v. Redington, ubi sup. (9) Elliot v. Elliot, 2 Cha. Ca. 231. (r) Woodman r. Morrell, 2 Freem. 32; Swift v. Davis, 8 East, 354, n. Murless v. Franklin, 1 Swanst. 13; Scawin v. Scawin, 1 You. & Coll. C. C. 65.

See

(s) Shales v. Shales, 2 Freem. 252; Lamplugh v. Lamplugh, 1 P. Wms. 111; Taylor v. Taylor, 1 Atk. 386;

Redington v. Redington, 3 Ridg. P. C. 106; Finch v. Finch, 15 Ves. jun. 43; Kilpin . Kilpin, 1 Myl. & Kee. 520.

(t) 8 East, 354, n.; see Sidmouth v. Sidmouth, 2 Beav. 447.

(u) Prankerd v. Prankerd, 1 Sim. & Stu. 1.

(x) See Finch, 340, 341; Lamplugh v. Lamplugh, 1 P. Wms. 112; Mumma v. Mumma, 2 Vern. 19; Redington v. Redington, Ridg. P. C. 106. Note, the case of the Attorney-general v. Bagg, Hard. 135, turned on fraud.

(1) See Jackson v. Matsdorf, 11 John. 91, 96.