
    Jackson, ex dem. Z. D. Feller, vs. J. Feller.
    A resulting trust may be rebutted by paroi proof that the lands in which the estate is claimed were a gift and advancement to the grantee, and were not purchased for the benefit of the party paying the consideration money.
    This was an action of ejectment, tried at the Dutchess circuit in' December, 1826, before the Hon. Samuel R. Betts, then one of the circuit judges.
    The lessor of the plaintiff {Zachariah D. Feller) produced a deed from Henry M. Hoffman and Sally his wife to the lessor, bearing date the 12th June, 1820, for one fourth of the farm whereof Nicholas Hoffman died seized. The consideration expressed was $1750. The plaintiff further proved that Nicholas Hoffman died seized of the farm mentioned in the deed, in 1798, having previously devised the same to his four sons Peter, Herman, Martin and Henry, the three first of whom, shortly after the decease of their father, sold their portions of the farm to Zachariah Feller, who went into possession of the farm, and continued in possession until his death, in 1825. It was admitted that the defendant in this action was in possession of the whole farm at the commencement of this suit. The plaintiff rested.
    On the part of the defendant, it was proved that Zachariah Feller, the uncle of the lessor of the plaintiff, bargained with Henry M. Hoffman for his share of the farm whereof Nicholas Hoffman died seized, and paid the consideration money on the purchase ; that the lessor of the plaintiff had lived with his uncle about three or four years previous to 1823, when he left him, saying he would not work there any longer, as he did not know what he was working for; that he had not got any thing for his work except his every day’s clothing, and he did not know he was ever to get any thing more if he stayed.
    The plaintiff then called John D. Feller, who testified that he was a brother of the lessor of the plaintiff; that the second or third year after his brother Zachariah went to live with his uncle, his uncle told him- (the witness) that he had thought of giving Zach. (the lessor of the plaintiff,) part of his farm, and wished him to call to them his brother David ; that on David joining them, their uncle said he wanted them to agree to see that Zach. should have $600, which their father had given him by his will; that he had requested their father to give that sum to Zachariah by his will, and then he (Zachariah the uncle) would see and provide for young Zachariah. They agreed to see the $600 paid. A few days after, he saw his uncle again, who said he had given Zachariah (the lessor of the plaintiff) the quarter of his farm which he had bought of Henry N. Hoffman. The conversation was shortly after Hoffman removed from the place.
    Reuben Rowley testified that he was instructed by Zachariah Feller to draw a deed from Henry M. Hoffman and Sally his wife to Zachariah D. Feller for Hoffman’s quarter of the farm; that he accordingly drew the deed, which was executed by the grantors at the house of Zachariah Feller, who, together with the witness, signed their names as witnesses to the deed, and he, the witness, being a commissioner, took the acknowledgment of the deed. Zachariah Feller directed the deed to be delivered to witness for Zachariah D. Feller, which was accordingly done, and it remained in his possession until after the decease of Zachariah Feller, when he delivered it to the lessor. After the deed was executed, and on the same day, Zachariah Feller told him and David Feller, junior, that he had desired his brother David to give his son Zachariah only $600 by his will, which was much less than an equal proportion of his father’s property ; and that he, Zachariah, had given that quarter of his farm which he had bought of Henry N. Hoffman to his Nephew Zachariah, as a provision for him according to the understanding when he came to live with him. This witness testified that he did not know that the lessor of the plaintiff had any knowledge of the deed until after the decease of his uncle. The testimony of the two last witnesses was confirmed by the evidence of David Feller, junior.
    It was attempted on the trial to shew that Mr. Rowley had given a relation of the facts at other times different from what he testified on the trial. Ephraim Fulton testified that he inquired of Mr. Rowley whether the deed was left with him to be delivered to Zachariah D. Feller, who replied that it was some time since the deed was delivered to him, and be had forgotten. After a little hesitation, he said he believed old Zachariah Feller told him that if David Feller, young Zachariah’s father, would give his son Zachariah a bond for $600, then the deed should be delivered to Zachariah D. Feller ; that the transaction was of considerable standing, and he could not recollect how it was. Killián Miller testified, that in a conversation he had with Rowley on a certain day when Mr. Oakley was consulted by Zachariah D. Feller respecting his claim, Rowley related what took place either at the time the deed was drawn or executed. He stated that Zachariah Feller told him to keep the deed, and if old Feller would give his son Zachariah a sum of money, then he should have the deed; and Rowley asked the witness whether a bond could not then be made out to secure the money so as to give the deed effect. Jacob Shook testified that Rowley, in answer to his inquiry about the deed in question, said that Zachariah Feller told him that if old David Feller would pay or secure to his son Zachariah $600, the deed was to be delivered to Zachariah. Thomas J. Oakley testified that at the'consultation with him alluded to, Rowley stated expressly that the deed was absolutely delivered to him for Zachariah D. Feller, and that the statement then made to him by Rowley in relation to the whole transaction was substantially the same as he had testified on the trial. He further testified that the question submitted to him by Mr. Rowley at the consultation was, whether the bond could then be given by John D. Feller and David Feller, junior, to Zachariah D. Feller, in pursuance of their agreement with Zachariah Feller, deceased, and be as valid and effectual as if it had been executed in the life time of Zachariah Feller.
    A verdict was taken for the plaintiff .subject to the opinion of the supreme court.
    
      P. Ruggles, for the plaintiff.
    The principal question is, whether a resulting trust was created in this case, or whether the purchase was made for the benefit of the lessor of the plaintiff. A resulting trust, it is admitted, may be created by paroi, and of course may be rebutted by paroi. (2 Johns. C. R. 405, 416. 1 id. 582.) The intention of the party paying the consideration is inquirable into, to determine whether or not a resulting trust is created. (2 Maddock, 115. 1 Swanton, 18. 4 Desaussure, 487. 16 Johns. R. 197, 9.) The intent here to benefit the lessor of the plaintiff is incontrovertibly established.
    
      E. Williams, for defendant.
    The consideration being paid by Zachariah Feller, sen. and the. deed taken by him in the name of Zachariah D. Feller, the latter became the trustee of the former, and the trust might be enforced in equity. (2 Johns. Dig. 424, tit. Resulting Trust, and cases there cited.)
    
    It is very probable that it was intended to give the lessor of the plaintiff an interest in the premises conveyed to him ; but the estate vested in the purchaser, the elder Feller, and that estate could be divested only in conformity to the provisions of the statute of frauds; it could not be divested by any thing resting in paroi. A resulting trust may be rebutted by paroi, that is, the payment of the consideration may be denied or explained; what rests in pais may be rebutted by proof in pais; but the proof establishing the trust being uncontradicted, the estate vested in the purchaser by operation of law, and he has done no act to divest himself. (1 Cox, 15.)
    Was it an executed gift % The deed was not delivered to the grantee, nor was he put in possession of the land. A paroi promise to pay money as a gift will not support an action. (Pearson v. Pearson, 7 Johns. R. 267.) In that case, the court say a gift is not consummate and perfect until a delivery of the thing promised, and until then, a party may revoke his promise. If personalty will not thus pass, surely an in-interest in land cannot in this way he created. If there was a delivery of the deed, that delivery was conditional, and the condition has not been performed.
    
      Ruggles, in reply.
    The intention of the purchaser to benefit the grantee, whose name he procures to be inserted in the deed, may be shewn, to rebut the evidence of a resulting trust arising from the proof of the payment of the consideration ; it explains the payment. Parol proof is admissible in support of the nominee of a conveyance. (2 Cox, 91.) The proof here is not only that the donor intended to give, but that he had given the land described in the deed. There was nothing executory in the thing; nor was it extraordinary that the donor should remain in possession and not communicate what he had done to his donee; it is what happens in every case of devise. Whether the donee received $600 from his father’s estate cannot -affect the deed. It is manifest the anxiety of the donor on this subject was only to increase the interests of the object of his beneficence, not to make bis own donation dependant upon the happening of that event.
   By the Court, Sutherland, J.

The premises in question were purchased by Zachariah Feller from Henry N. Hoffman in June, 1820, for the sum of $1750. The consideration was paid by Zachariah Feller, but the deed was, by his directions, taken in the name of bis nephew, Zachariah D. Feller, the lessor of the plaintiff. The question is, whether the estate vested absolutely in the lessor, or whether it is a case of an implied or resulting trust in favor of the individual who paid the purchase money.

The payment of the consideration by Zachariah Feller is clearly proved, and that is prima facie sufficient to establish a resulting trust. (1 Johns. Ch. R. 586, and 2 Johns. Ch. R. 408, 451, where the subject is fully discussed, and all the English authorities collected and considered.) But as a resulting trust may be proved, so it may be rebutted by paroi evidence; (2 Atk. 98; Amb. 126; Dougl. 24; 2 Johns. Ch. R. 416 ; 2 Madd. Ch. 113 ; Dyer v. Dyer, 2 Cox, 94 ; 1 Cox, 15 ; 1 Swanston, 18 ;) and I think the evidence in the case clearly shews that the purchase was not made by Zachariah Feller for his own benefit, but that he intended it as a gift and advancement to his nephew. Mr. Rowley, who drew the deed and witnessed its execution, testifies that Zachariah Feller directed the deed to be delivered to him, the witness, for Zachariah D. Feller, the grantee, which was accordingly done ; and he retained it in his possession until after the death of Zachariah Feller. He declared to John D. and David Feller, that he intended to give the lessor of the plaintiff a part of his farm, in order to make him equal in point of property with his brothers, to whom their father had given the largest portion of his estate by his will; and he afterwards declared to the same witnesses, that he had given to Zachariah D. Feller the quarter of his farm which he bought of Henry N. Hoffman. He told Mr. Rowley that the conveyance was intended as a provision for Zachariah D. Feller, according to the understanding when he came to live with him. This evidence completely repels all idea of a resulting trust. Admitting apart of the consideration or inducement to the making of this conveyance to the lessor to have failed, it cannot he set up at law, and would have no effect upon the legal title. (2 Johns. R. 177, 179, note.)

Judgment for plaintiff  