
    Wallace and another against Duffield and wife.
    In Error.
    ERROR to the Common Pleas oFFranklin county, in an ejectment brought by William Duffield and Rebecca his wife against Joseph and Margaret Wallace.
    
    The errors assigned in this case were in the charge of the Court of Common Pleas, which was filed and placed on the record at the request of the defendant below; agreeably to the provision of the act of assembly. The .¿harge of the Court was as follows :
    “ The plaintiffs claim in this case from two distinct sources, “both in right of Rebecca, wife of William Duffield. The “ first, as the sister of William Wallace who died intestate, un- “ married, and without issue, by which the one-half of the “ fifth undivided part is claimed of the land in controversy. “ This demand is not denied by the defendants’ counsel, and “ your verdict, in any event, will be for the plaintiff for this “ quantity. The second ground of claim arises from the fol- “ lowing circumstances, fosias, the ancestor of. the plaintiff “ Rebecca, by his will directed his real estate to be sold, and “ the produce thereof and of his personal estate to be disposed of, part to the widow for life, and the remainder distri- “ butively. (See will.) The real estate lying in Chester “ county was sold for 2000 pounds. The personal estate by “ the inventory, amounted to upwards of 600 pounds; and by “ evidence in the cause, sold for four times that amount, on “an average : but no vendue paper, or settlement of the ad“ “ ministration account appears. By the will of fosias, his “ widow and William his son are appointed executors : and it “is given in evidence, that the family removed from Chester “ county to Franklin county, and purchased the land in question, for 4000 pounds continental money: the first payment “ of which was 2000 pounds, and was the identical money, kept in a small trunk received for the land in Chester coun- “ ty. But from a fact that came out, there, is reason to be- “ lieve that only 1800 pounds is identified: although it is con- “ tended, that the remaining 200 pounds might have arisen, “ and ought to be presumed to have arisen, from the personal “ estate, as no evidence is given of any property in the widow “ or son, at the time of the sale, but what arose from the tes- “ tator’s estate.
    
      Whereexecutors wereauthorised by will to sell land devised to the testa- • tor’s family-on giving security, and they sold the land and employed the identical money it produced in buying other land, - and there was evidence of declarations by one of the executors, tending to shew, that the purchase was in trust for the family, Held, that the circumstances were sufficient to raise a trust for the family in the lands thus purchased.
    Trusts are not strictly within J,he statute of limitations, but equity has adopted the principles of the statute. *
    
      “ The plaintiffs insist, that from these facts, and also from “ the declaration of William, given in evidence, that ‘ if the “money had not been so invested, the girls might have gone “ and whistled for their fortunes, and that the money would “ all have perished,’ that a trust was created in the land, either “ for the one-half thereof, if the 2000 pounds was advanced “from the identical money of the estate; or, if only 1800 “ pounds was advanced, then for eighteen-fortieth parts “ thereof. On the other hand it is contended, by the defend- “ ants’ counsel, that there are no declarations of a trust, nor “ any confessions of one ; and that no trust arises on the facts “ disclosed.
    “ The Court adopt the opinion of the Supreme Court in “ the case of The Lessee of German v. Gabbald, 3 Binn. 302. “ and instruct the jury, that if they believe that the identical u money of the estate kept together, viz. 2t)00 pounds or 1800 “pounds thereof was thus vested in the land, and they meant “ honestly, a trust resulted, fortified by the declaration stated “to have been made by William. But if they meant to di- “ vert the money from its proper channel, and convert it to “ their own use, they would be guilty of a fraud; and, in that “ case, according to the opinion of Lord HardwicKe, there “ would be a resulting trust. These are the words of Chief “Justice Tilghman, as applied to the case of German, be- “ fore mentioned. The Court further state, that there ought “ to be an intention of creating a trust, either express, or ma- “ nifested by declarations, or derived by implication from the “ acts of the party to support the claim. The Court is aware “ of the inconveniency which may arise from this decision, if “vague and uncertain acts, and not a precise and specific application should raise a trust. Money’ in the hands of ex- “ ecutors or agents incidentally used, ought not to affect those “ persons. Some intention must appear by parol or other de- “ donations, so as to raise the trust: or it may be derived, as “ before mentioned, by necessary implication, from the na- “ ture of the acts proved; or there may be evidence of facts, “ by’ virtue of which a trust may’ result by operation of law. “The jury will judge of these facts, and the application of “ these principles, (the Court reading to the jury the whole “ of the opinion of the Court, in the case of the lessee of Ger- “ man v. Gabbald:) and being of opinion that there was no- “ thing in the disposition of the money, by this will, to pre- “ elude the operation of the general principles laid down in “ that case. If those facts mentioned are established in the “ opinion of the jury, in that case the further finding will be “ in favour of the plaintiffs, either of one-fifth of one-half, or “ one-fifth of eighteen-fortieths, as they shall have evidence “ of 1800 or 2000 pounds of the identical money arising from “the real estate, being thus employed by the executors.
    But if a trust has been thus created, although not sub- “ ject to the act of limitations respecting real property, yet “ may it not be accompanied with such circumstances as to “ raise a presumption of acquiescence, under all the facts of “ the state of the family which have been given in evidence “ and disclosed, especially from the great lapse of time, thirty- “ one years, amounting to presumption of abandonment ? Un- “ less these presumptions are repelled by all the facts and “circumstances which have appeared in evidence in the “ course of the cause, if the presumption is raised and not so « repelled, then there should be a verdict for the defendants; « otherwise for the plaintiffs.”
    The will of Jasias Wallace was made on the 26th April, 1776. It appointed his wife Ann and his son William, executors, and authorised them to sell the plantation. It permitted them, if they chose, to live on it, and keep the family together : but when they sold the place they were to give to the testamentary guardian sufficient security, if required by him, to pay to each of the other children what would be their share. The testator died in 1778.
    
    
      Riddle and Duncan, for the plaintiffs in error.
    The ejectment is in nature of a bill in equity, and must be governed by general principles. The Court must decide whether the application of equitable principles to the facts entitles the plaintiffs to a recovery. The facts are contained only in the charge of the Court, and to that we are confined. The question is, whether land sold by an executor, and invested again in land, can, after an acquiescence of thirty-one years, be claimed as land., by those who were entitled to the money for which the land of the testator sold. We deny that an executor investing the assets in land is answerable for any thing but the money and interest. The Court of Chancery will not follow money received by an agent and invested in land so as to raise a trust by which an equitable estate in the land shall vest in the principal. Lane v. Dighton.
      
       The money, in the present case, was not invested in pursuance of any.trust. The testator directed no investment, but the contrary, that security should be given for the payment of the money. If money is misapplied by an agent, Chancery will not follow it and make it a lien on the land in the hands of the vendee. Cox v. Baitman.
      
       In no case can an implied trust arise, unless the whole purchase was made with trust money. Great difficulties would arise if a partition were to be made amongst many. They further cited Ryall v. Ryall.
      
       Deg v. Deg.
      
       1 Bl. Rep. 123. Gregory’s lessee 
      v. Salter. German v. Gabbald.
      Loyd v. Spillet.
      
       2 P. Wms. 143. 3 P. Wms. 143. 3 Atk. 225. 538. 2 Vern. 167. 1 Atk. 59. 2 Fonb. Eq. 120. Prec. in Ch. 84. 103. 168. 172. 1 Cruise, 472. Cress v. Norton.
    
    2. In this case the plaintiffs were barred by the statute of limitations. There is an adverse possession of thirty-one years. If suit had been brought before, perhaps it might have been proved, that the plaintiff, Rebecca, had received her share of the personal estate. Sugden's Vendors, 242. Smith v. Clay.
      
       1 Atk. 474.
    
      M'Cullough and Watts, contra.
    We stand on a verdict which, it must now be supposed, found all necessary facts. The Court left it to the jury whose money paid for the land, and what was the intent of investing the money in land. We consider it as a case in which the executors invested the money in land for the use of the family. It is laid down as a principle, that a trust results to him who advances purchase money, Sugden’s Vend. 414: and, that if the trustee or executor purchases land with trust money or assets, no resulting trust takes place unless the application of the trust money is clearly provfed. Ib. 627. Willis v. Willis.
      
       Any parol.declaration of a trust is sufficient. What William Wallace said was a declaration of trust. The case of German v. Gabbald is in point. As to' the statute of limitations, the Court left the circumstances to the jury. It does not appear by the charge that there ever was an adverse possession.
    
      
      а) Amb. 409.
    
    
      
       2 Vez. 19.
    
    
      
       1 Atk. 59.
    
    
      
      
         2 P. Wms. 412.
    
    
      
      
         3 Binn. 302.
    
    
      
      
         2 Atk. 450.
      
    
    
      
       9 Mod. 233.
    
    
      
      
         Amb. 645.
    
    
      
      
         2 Atk. 71.
      
    
   TilGhman C. J.

No facts appear.but such as are mentioned in the charge of the Court; so that the only question is, whether there be error in law'in the opinion delivered on those facts. Josiah Wallace deceased, by his will, dated 26th April, 1776, appointed his wife Ann, and his son William? his executors, and authorised .them to sell the plantation on which’he lived, in Chester county. If they chose to live on it, and keep the family together, they were permitted to do so ; but, in case the. land should be sold, they were to give security to the testamentary guardian of the testator’s other children, if. required, for the shares devised to them by the will. The testator died in the year 1778. In April, 177V, ' the executors sold the land for 2000 pounds, continental currency, and took a deed in their own names. The money received for the testator’s land was kept by itself, and 1800 pounds of it were applied to the payment of the purchase money of the Franklin county estate. Whether 200 pounds more of the testator’s personal estate was not also applied in the same way, was a fact which appeared doubtful, and was left to the jury. There was evidence of declarations by William Wallace, tending to shew that the purchase in Franklin county was in trust for the testator’s family. These declarations were also left to the jury, with directions to find for the plaintiffs, Duffield and wife, (who claimed on the supposition that the land in dispute was purchased in trust for the family,) in case they should be satisfied from the declarations of the executors and other circumstances, that the land was really intended to be purchased in trust. That the jury were satisfied of these facts, must now be taken for granted, as they found for the plaintiffs. Resulting trusts are not within the provisions of the act of assembly, which requires conveyances of land to be in writing. Where money is paid by A. and a conveyance of the land taken in the name of B. a trust arises for B. But it is objected that the law of resulting trusts does not apply to the case before us, for two reasons: 1st. Because the 1800 pounds applied to the purchase, was not the money of the legatees. The executors bad a right to use that money as they pleased, and could only be called on to pay the several legacies at the time appointed by the testator. 2d. Because the land in Franklin county cost 4000 pounds, which was double the amount received for the testator’s land in Chester county. These objections would have great weight, if the cause rested solely on the application of the proceeds of the Chester county estate, in part payment for the land purchased in Franklin county. But the plaintiffs’ case is very much strengthened by the declarations of the executors. The bare investment of the testator’s money, together with money the private property of the executors in a purchase of land, might not afford convincing proof that there was an intent to purchase in trust for the legatees; and, therefore, a trust might not result by operation in law. But when to the investment of the money is added the declaration of the purchaser, that a trust was intended, a trust must ceriainly be raised: and tbe only difficulty is in the proof of these declarations by parol evidence; as to that the cases of' Gregory's lessee v. Salter, 1 Dall. 193. and German's lessee v. Gabbald, 3 Binn. 302. are strong in favour of the evidence. The charge of the President of the Court of Common Pleas was delivered in very cautious and guarded language. The jury were warned of the danger of listening to parol evidence, unless it was clear and convincing ; and they were told that the law would not raise a trust, unless an intention to create it was proved by parol or other declarations. Supposing the intent to be proved, no difficulty would arise from the circumstance of only part of the purchase money being paid from the funds of the testator. The amount of the whole purchase money, and of that part which was taken from the funds in the hands of the executors, being ascertained, it was easy to calculate the proportion of the land on which the trust would operate : and in that respect the jury received precise and proper instructions from the Court. I do not see, therefore, that there is any error in the charge, so far as respects the trust.

Another exception is made to that part of the charge which relates to the act of limitations. It was left to the jury to decide from all circumstances, whether, from the length of time between the purchase of the land in dispute and the bringing of this ejectment, it might not reasonably be inferred that the plaintiffs considered the estate as belonging to the' defendants. It is contended that the act of limitations is a positive bar. But there are no facts on the record to warrant us in saying so. It does indeed appear that there was an interval of thirty-one years between the purchase of the land and the commencement of this suit. But it does not appear in what manner the possession has gone. The-Judge refers to circumstances respecting the situation of the family which were given in evidence, but are noton the record. We may imagine many circumstances which would rebut the presumption arising from length of time. Trusts are not strictly within the act of limitations: but equity has wisely adopted the principle of the act. Nevertheless, in equity, as well as at law, it may be shewn from circumstances, that the possession of the defendant ought not to be considered as adverse. Not knowing what were the circumstances alluded to in the charge, we cannot judge of the weight of them. Neither can we say that there was error in referring them to the consideration of the jury. It was in the power of the defendant’s counsel to have had all material facts placed on the record. But having brought up the charge of the Court without any other facts than what are mentioned in it, we can only judge of it as we find it. Not perceiving any error, I am of opinion that the judgment should be affirmed.

Yeates J.

We must judge of this case from the facts disclosed in the charge. The jury were instructed, that at least 1800 pounds of the consideration money paid for the lands in question, was identified to be the same money as had been received on the sale of the lands in Chester county; and that no evidence had been given of the widow or son having any property but what arose from the testator’s estate: that William Wallace, the active contracting party, had declared, that if the money had not been so invested, the girls might have gone and whistled .for their fortunes,, and that'the money would have all perished: and the question of fact was submitted to the jury, whether an express trust-was not proved to their satisfaction, and manifested by all the circumstances of the case. The jury were told explicitly, that some intention must appear by parol or other declarations, so as to raise the trust, or it might be derived by necessary implication from the nature of the acts proved. I can' see-nothing incorrect herein, nor in assimilating the case to German v. Gabbald, 3 Binn. 302. Let us transport ourselves back to the period of time -when the different transactions took place. -The circulating medium of the country was fluctuating; and though different persons ascribed depreciation to different causes, all agreed that it was sinking in value in 1779. It can- excite no surprise, that the widow and eldest son of the testator should be anxious to invest.the proceeds of the Chester county property in lands here ; and, acting as executors, should take- the conveyance in their own names. They were bound by every tie of duty to take the best measures to promote the best interests of the family. The verdict.of the jury concludes us on this point, by establishing the trusts' on the facts fairly submitted to their decision.

The jurors were truly told that trust estates are not within the act of limitations; but that presumptions of acquiescence might be raised from the lapse of thirty-one years, which might give just ground to infer an abandonment of the claim of the plaintiffs below: but that nevertheless such presumptions might be repelled by all the facts and circumstances which had been shewn in proof in the course of the cause. No one can deny that this is sound, legal reasoning. A presumption will only stand until the contrary be proved. We are left in the dark as to those repelling facts and circumstances. We know nothing of the possession of the land, whether it was friendly or adverse to the claim of Dufjield and his wife. But we are bound to conclude that the jurors did not form their opinions without just grounds. No motion was made for a new trial: nor could we go into that enquiry if it had been made. Judgment was rendered on the verdict, and I think it should be affirmed.

Gibson J.

This case differs in an important feature from Gregory’s lessee v. Salter, 1 Dall. 193. and German v. Gabbald, 3 Binn. 302. which carried the doctrine of resulting trusts quite far enough. In each of the two last, the whole consideration moved from the person, to whom the trust was held to result: in this, more than a moiety of the purchase money was paid by the executors with their own funds. A resulting trust, properly so called, arises where the purchaser of land pays the purchase money, but takes the conveyance in another person’s name ; but where a trustee purchases with the trust fund, and takes the conveyance in his own name, there is, properly speaking, no resulting trust, though it is usually called so; for there is in equity a very substantial difference between them both in the quality and extent of the relief that can be called for. In the former, the trustee will be compelled to execute the trust by a conveyance of the land: in the latter, chancery will raise the money out of the land, by a sale of the whole, or such part of it as may be necessary to produce the sum withdrawn from the trust; and this mode is peculiarly convenient where only a part of the consideration has been taken from the trust fund. In Kirk v. Webb, Prec. in Ch. 84. and Halcott v. Markant, Prec. in Ch. 168. it was said money has no earmark, and that chancery oannot, therefore, follow it into the land where it has been invested; but it is certainly law that it may be pursued where the purchaser stood as a trustee in relation to the fund. This was decided in Deg v. Deg, 2 p. Wms. 414. and in. one or two British cases since the revolution, in which it was held the owner of the trust fund had a specific lien. In Pennsylvania,, where we cannot, for want of' a court of chancery, decree a sale, wé are compelled to have recourse, to the action of ejectment as a means and instrument of doing equity between the parties, although the object is for the most part attained by it in an imperfect manner. On the ■whole evidence, then, it would seem the plaintiff below might recover, and that the direction of the Judge was substantially right. As to the other point, I concur without hesitation.

Judgment affirmed.  