
    Luther Jenney versus John Alden, Junior.
    A father, having a minor son, agreed that he should have the benefit of his ow t earnings; but from time to time received those earnings, and, being then in good circumstances, he purchased land to an equal value, which the grantor conveyed by deed to the son, the, father paying the consideration for the same. The title of the son was maintained against the creditor of the father, who had levied his execution thereon as the father’s, he having absconded insolvent.
    This was an action of trespass for breaking and entering the plaintiff’s close in New Bedford, containing about eighteen acres.
    The defendant pleaded not guilty as to all, except five acres described in the plea, on which an issue was joined.
    As to those five acres, he pleaded that they were the soil and free hold of Rebecca Church and Kelley Eldridge, executors of the last will of Benjamin Church; and that he, as their servant, and by their command, entered, &c.
    The plaintiff, in his replication, traversed the allegation, that the said five acres were the soil and freehold of the * said R. Church and K. Eldridge, on which issue was [*376] joined.
    At the tr'al, at the sittings at Taunton, after October term, 1812, the plaintiff offered no evidence in support of the first issue, and a verdict was found for the defendant on that issue.
    On the second issue a verdict was found for the plaintiff, subject to the opinion of the Court upon the following case agreed by the parties.
    The said R. Church and K. Eldridge, in their said capacity of executors, recovered judgment, in September, 1809, against one Abner Jenney, and caused the execution, issued thereon, to be duly levied on the said five acres on the 26th of said September.. The debt, upon which the said judgment was founded, accrued to the said Benjamin Church on the 11th of September, 1807.
    On the 7th of December, 1807, one Paul Swift executed a deed for the conveyance of the said eighteen acres to the plaintiff, who was the son of the said Abner, and at that time about nineteen years of age. The said Abner bargained for the said land, and paid the whole consideration therefor, being about $ 463, by giving his notes for that sum. At the time of this transaction, the said Abner was in good credit, and not involved.
    When the plaintiff was about fourteen years of age, his father told him that he might go to sea, and that he, the father, would give him his time, or all that he should earn, till he should be twenty-one years of age. The plaintiff accordingly went to sea, and has followed that course of business ever since. His father, at different times before the said conveyance, had received the wages earned by the plaintiff, and at that time caused the said conveyance to be made to. the plaintiff, intending it as a compensation for the wages so received by him. No account was kept, nor any statement made, of the amount so received by the said Abner, but it was believed to be equal to the said price of said land. .
    [*377] * Immediately after the said conveyance, the said Ab ner entered upon the said eighteen acres, and felled the trees growing thereon ; and it does not appear what appropriation was made of the proceeds or income thereof. The said Abner absconded and left this part of the country soon after the levy of the said execution.
    If, on the foregoing case, the Court should be of opinion that the plaintiff was entitled to recover, the verdict was to stand ; otherwise, the verdict on the second issue was to be set aside, and a verdict on that issue entered for the defendant, and judgment in either case accordingly.
    
      Sproat and Washburn, for the plaintiff.
    
      J. M. Williams, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court.

The deed, produced by the plaintiff in support of his title, is ob jected to on the ground of it! being fraudulent against creditors ; oi because it should be considered, from the circumstances of the case, as creating a trust estate in the plaintiff, of which Abner Jenney, his father, was the cestui que trust; and so that it was liable to be levied upon in satisfaction of a debt due from Abner.

But, according to our statute against frauds and perjuries, it cannot have vested an interest by way of trust in the father ; for there is no declaration of such trust in writing ; neither is it a resulting trust by implication of law. For there is nothing in the deed which surmises a trust or an interest in any person other than the grantee.

It has lately been determined, in. the case of The Northampton Bank vs. Whiting, that a trust by implication cannot be proved by paroi ; the policy, as well as the express provisions of our law, being, that no title to real estate shall exist except by deed or record.

The land conveyed by this deed passed, upon its delivery, from the grantor to Luther Jenney, the plaintiff. Abner's name is not mentioned in it ; and, if the extent should be maintained, the executors of his creditor would derive a title from one who had none himself.

* Persons may sometimes put their funds out of their [* 378] hands by means of procuring a conveyance to third persons, confiding in their permission to take profits, or in their willingness to convey to them or to their use. But this is so hazardous that it will seldom occur. Those, who are willing to be depositories for an unlawful purpose, will pi obably be willing to claim as their own what they received only in trust. Besides which, there might be just apprehensions of a prosecution for a conspiracy, if a man should thus consent to aid another in defrauding his creditors. At any rate, if there is any mischief, it is for the legislature now to apply a remedy.

The suggestion of fraud, in the conveyance taken by the father to the son, cannot be attended to by us ; as it was a proper matter for the consideration of the jury. If, however, any strong indications of fraud appeared in the case, we might send the cause back to be tried upon that point. But it appears, that, at the time the purchase was made, the father was free from debt, so that no motive existed to conceal his estate. It appears, also, that there was an equitable consideration subsisting between the father and son ; the former having received the earnings of the latter, an agreement having been entered into by the father, that the son should enjoy the fruits of his own labor, although not of an age to be emancipated. This agreement was a lawful one, and the money received by the father from the earnings of the son may be equitably considered as the money of the son which, if he could not obtain it by coercion, was yet a good and valuable consideration for any promise from the father, and would fully justify the consideration iij this deed as paid by the son.

Upon the whole, we see no ground to impute fraud in the transaction, unless it be the occupation of the land by the father after the purchase, without any evidence of his having accounted for the rents and profits. But the connexion between the two, which [*379] seems to have been perfectly * confidential, the minority of the son, and bis absence at sea, may well account for this, without a necessary inference of fraud.

Judgment according to the verdict. 
      
      
        Stat. 1783, c. 37, § 3.
     
      
      
        Ante, page 107.
     
      
      
        Sed vide note to that case, ante, p. 107.
     
      
      
         Smith vs. Lane et al., 3 Pick. 205. — Russel vs. Lewis, 2 Pick. 508. — Kempton vs. Cooke el al., 4 Pick. 305.
     