
    *Hubbard v. Goodwin. Kennedy &c. v. Same.
    February, 1832.
    Aliens — Right to Own Trust Estates — Escheat.—I, an a is purchased by or tor an alien, and paid for by him or with money furnished by him, but the conveyance is taken to a citizen, upon express trust that he shall hold for the benefit of the alien and his heirs: Hbld, this trust estate of the alien can only be so acquired by him for the commonwealth, and a court of equity will compel the trustee to execute the trust for her benefit.
    Same- Same — Same - Profits — Equity Practice. — The court of equity, in such case, follows the law in relation to escheats of legal estates purchased by aliens; and as the law does not, in cases of escheat, give the commonwealth the profits received by the alien or any other person before office found, so neither will equity, in the case of the trust estate, give the commonwealth the profits thereof accrued before decree.
    Same— Purchase of Land by Citizen with Alien’s Money —Implied Trust — Forfeiture— Qumre. — whether in the case of a purchase of land by a citizen, and the payment of the purchase money by, or with the money of, an alien, a resulting trust may be implied in equity for the alien, and such implied trust executed i'or the commonwealth? and, per TuoKMt. P., equity will not. in such case. Imply a trust for the alien, in order to forfeit it to the commonwealth.
    Decrees — Between Co-defendants — When Proper.-)— It seems, there cannot properly be a decree between co-defendants in equity, in any case, in which the plaintiff is not entitled to a decree against both or either; and if. would be inconvenient to extend that practice further.
    Thomas Eretwell Philips, an alien, subject of G. Britain, came to Virginia in 1805, and, either personally or through the agency of Daniel Brodie, contracted with W. M. Cary, for the purchase of a parcel of land called Celeys in Elizabeth City county, for 8000 dollars. Philips paid the whole of the purchase money, or advanced it to Brodie to be paid, to Cary; but, in order to prevent the land from escheating to the commonwealth, and therefore to conceal Philips’s interest in it, the conveyance from Cary was taken, not to Philips, the alien, but to Brodie who was a citizen. Philips took possession of the land, resided upon it, and took the profits to his own use, so long as he lived. He had a daughter named Sarah, the wife of John Goodwin, and she had an infant son, Thomas Eretwell Goodwin: *the daughter, her husband, and her son, were all aliens: they came to Virginia during Philips’s lifetime, and lived with him till his death, which happened in 1808. He died intestate. After his death, John Goodwin and his wife occupied Celeys, and took the profits, till 1809, when Goodwin died; and then Mrs. Goodwin continued to occupy and take the profits of the land, till 1811, when she married the same Daniel Brodie to whom Celeys had been conveyed by dary in 1805. Erom the time of Brodie’s marriage with Mrs. Goodwin, they resided at Celeys, and Brodie took the profits, until 1815, when his wife died, without having had any child by him ; and thenceforth, Brodie continued to hold and enjoy the profits of the land, till his death in 1819. Meantime, Brodie sent his step son, T. F. Goodwin, to England, where he remained for several years, and until he attained to full age, under the care of John Goodwin, his paternal grandfather, and his other relations there.
    Philips, it seemed, died in possession of personal estate, consisting of slaves, stock and furniture, at Celeys, besides money. Upon the death of Philips, in 1808, administration of his estate was granted to John Goodwin: upon the death of Goodwin in 1809, his widow took administration of her husband’s estate, and administration de bonis non of her father’s: and upon her death in 1815, her second husband, Brodie, took administration of her estate, and administration de bonis non of the estate of Philips.
    Brodie left a will, whereby he directed that Celeys (which he described as the land which he had purchased of Cary) and all the slaves and other personal property there (which, he said, he had acquired by his marriage) should be sold, and that all the debts due and moneys belonging to his deceased wife, should be collected, by his executors; and then directed, that his debts should be paid out of the proceeds of the sales of Celeys and the slaves and personal property there, and that 2230 dollars should be deducted from the same fund, which sum he bequeathed to his own *relations; and he bequeathed the residue of the proceeds of those sales, and the whole amount which should be collected of moneys due to his late wife, to his step-son T. E. Goodwin, for life ; remainder to his child or children, if he should leave any; and, if he should leave none, remainder to the testator’s two nieces, Mary the wife of • William Nimrao, and Martha the wife of Edmund Kennedy. All the property he held in his own right, he devised and bequeathed to the same two nieces and a nephew. And he appointed E. Kennedy and W. Nitnmo his executors.
    The executors proved the will, and took upon them the execution thereof. They continued to hold Celeys, till the end of the year 1821, abo.ut which time the executor Simmo died; and then Kennedy, in execution of his testator’s will, exposed it to sale, at public auction, and he himself became the purchaser, at the price of 4800 dollars.
    After this sale was made, William Sharp the english guardian (or who acted as the guardian) of T. F. Goodwin, by letter of attorney, appointed William Gray of Norfolk, his agent to attend to the interests of his ward in Virginia. And in 1823, Gray caused a bill to be exhibited, in the supe-riour court of chancery of Williamsburg, in the name of T. F. Goodwin, still an infant, against Kennedy, now the surviving executor, and Mary Nimmo administratrix of W. Nimmo, now dead, who had been the other executor, of Brodie: wherein Goodwin, claiming as a legatee under Brodie’s will, impeached the sale which had been made of Celeys by the executor Kennedy, on the ground that it had been unfairly sold, and purchased by the executor himself, at an under value; and prayed, that the sale should be set aside, and a resale of the subject, and an account of Brodie’s estate, and of the executors’ administration thereof. Kennedy, in his answer to this bill, denied that there had been any actual fraud in his purchase of Celeys, but declared he was perfectly willing that the sale should be set aside, and the land sold again for the best price that could be got. And, in September 1823, he wrote a letter to R. *B. Taylor (the counsel retained to prosecute the suit for T. F. Goodwin) offering to make sale of Celeys, upon such terms as he should approve, for the benefit of the parties concerned ; to which Taylor, after consulting Gray the agent, wrote an answer, acceding to the proposition, and adding — “We think it would be proper to offer the property for sale, on credit, with good security, but that it should be set up so as not to sell for less, than 6000 dollars. It would, perhaps, be better to endeavmur to make a private contract, as the sum to be obtained would then be known beforehand; but if a public sale be made, it should be so conducted as not to sacrifice the property at less than 6000 dollars, which Hubbard would have given.”
    Accordingly, in May 1824, Kennedy sold Celeys to Thomas Parker, for 6000 dollars, payable in instalments, and conveyed it to him. Of this sale, and of its terms, Gray and Taylor were apprised, and they approved it.
    And in October 1824, Parker sold and conveyed Celeys to Matthew Hubbard, upon the same terms on which he had purchased it ; Hubbard undertaking to pay the purchase money to Kennedy, which Parker had contracted to pay, as the instalments thereof should fall due.
    Goodwin’s suit against Brodie’s executors, in the court of chancery of Williamsburg, was heard in June 1824; and the chancellor ordered accounts of Brodie’s estate, and of the executor’s administration thereof. But while these accounts were in progress before the commissioner, Goodwin having attained to full age, came to Virginia: he arrived in September 1825. And the legislature, at the session of 1825-6, passed an act, granting and releasing to him all the right, title and interest, which had accrued, or might accrue, to the commonwealth, or to thp president and directors of the literary fund, in the land called Celeys; and authorizing Him to sue for the same, in any court of law or equity, and to hold it when recovered, in the same'manner, in all respects, as if he were a native born citizen ; upon condition that he should become a citizen of the U. States, *within two years from the time of passing the act; saving to all persons, other than the commonwealth, or the president and directors of the literary fund, any right which they had or might have in the land if the act had never been passed. And, by another act passed at the session of 1826-7, so much of the former act as imposed the condition that Goodwin should become a citizen of the U. States within two years, was repealed, and that condition dispensed with.
    In June 1827, Goodwin exhibited his bill in the court of chancery of Williamsburg, against Kennedy in his own right and as surviving executor of Brodie, Mrs. Nimmo the administratrix of W. Nimmo the deceased executor of Brodie, and Parker and Hubbard, the purchasers under Kennedy at his second sale of Celeys: wherein he set forth the facts above detailed, as to the purchase of Celeys in 1805, by or for Philips; Philips’s paying, or advancing to be paid, the whole purchase money to Cary; the conveyance taken to Brodie, in order to avoid the escheat; the successive occupation of the land by Philips during his life, by John Goodwin *And wife during Goodwin’s life, by Mrs. Goodwin till her marriage with Brodie, and then by Brodie till his death in 1819; the will of Brodie; and the sale of Celeys by Kennedy to Parker, and by Parker to Hubbard. And he alleged, that upon the purchase of Celeys from Cary, and the conveyance thereof taken from Cary to Brodie, Brodie executed a bond or some other instrument to Philips, whereby hé acknowleged that the land .was Philips’s property, and that he was only a trustee for Philips, and agreed to hold the legal title, and to convey the same, according to his directions; which instrument came into Brodie’s own possession upon his marriage with Mrs. Goodwin in 1810, and had either been destroyed by him, or was now in the hands of his executors. That Brodie being only a trustee .for Philips, and Philips the cestui que trust being an alien, the trust estate was escheatable to the commonwealth, and the commonwealth having by the act of 1825-6 and 1826-7, granted and released all her rights in *the subject to the plaintiff, he was now entitled to demand the land itself. And that Kennedy, when he sold the land in question to Parker, and Parker when he bought it, and Hubbard when he purchased it of Parker, had full notice of the trust upon which Brodie had held the legal estate. Therefore, the bill prayed a decree for the land, and for a conveyance and release of the legal estate of the same to the plaintiff; accounts of the profits received by Brodie, from the date of his marriage with Mrs. Goodwin till her death, and thenceforth .till his own death; of the profits received by Brodie’s executors from his death till the first sale to Kennedy; of the profits received by Kennedy, from his purchase till his sale to Parker; and of the profits received by Parker and by Hubbard, successively, during' their occupation of the land; and a decree for such profits against the parties respectively, as -well as compensation for any damages that had been done to the property, by cutting timber, or other waste.
    Kennedy, in his answer to this bill, averred, that he had no knowledge whatever of the secret trust for Philips, on which it was alleged Brodie held the legal estate of Celeys, or of the facts alleged, from which such trust was inferred; and that he had not found among Brodie’s papers, any instrument of writing declaring such trust. He had acted under the conviction, that the estate belonged absolutely to his testator, Brodie; he had, in execution of his testator’s will, sold the land to Parker, upon terms approved by1 persons representing (as he thought) the interests of the plaintiff in Virginia; he had received from Hubbard, who had purchased from Parker, a considerable part of the purchase money, which he had applied, in due course cf administration, to the payment of his testator’s debts; and he was ready to render an account of his transactions.
    Mrs. Nimmo, administratrix of Nimmo, the deceased executor of Brodie, in her answer, said, that as her intestate had had no part in making either of the sales of Celeys, so *neither had he ever received any part of the profits of that estate; he died in 1821.
    Hubbard, in his answer, said he was not informed and had no particular knowledge of any of the matters alleged in the bill, respecting the secret trust upon which Brodie held the legal title of Celeys for Philips. He had heard, that the plaintiff was prosecuting a suit to recover his share of the proceeds of the sale of Celeys, or to have the first sale set aside, and the' estate resold; but he never heard it questioned, that Brodie’s executors had full power to sell. Before he purchased the land of Parker, he ascertained that it had been sold by' Kennedy to Parker, with the assent of the plaintiff’s then agent and counsel in Virginia, and upon terms which They approved: his purchase, in truth, promoted the objects which the plaintiff’s agents, at the time, were seeking to accomplish: and he had paid Kennedy, the executor, about 4000 dollars of the purchase money.
    There was the fullest proof, that Celeys was purchased of Cary for Philips; that Brodie was only Philips’s agent in making the purchase ; that the whole of the purchase money was paid by Philips, or furnished by him to Brodie to be paid, to Caryr; that the conveyance was taken to Brodie, instead of Philips, only because the one was an alien incapable to hold real estate, and the other a citizen ; that the land was occupied by Philips, and by Goodwin and wife, and by Mrs. Goodwin, successively, till her marriage with Brodie in 1811; that Brodie, repeatedly, during Philips’s life, at the time of his death, during John Goodwin’s life, and after Brodie’s own marriage with Mrs. Goodwin, during her life, and after her death, acknowledged that Celeys was the property of Philips and his heirs, having been bought for him and paid for with his money, and that he Brodie claimed no interest in it, but only held the title as Philips’s friend, and for his benefit; that, soon after Philips’s death, John Goodwin his son in law, requested Brodie to convey Celeys to him, which Brodie refused to do, because he was an alien, but said, that whenever Philips’s heir at law should *become a citizen, and capable to hold the estate, a conveyance thereof to such heir should be immediately executed.
    In a letter written by Brodie to John Goodwin, the grandfather of the plaintiff, in 1818, and in another written to the plaintiff himself in 1819, Brodie spoke of Celeys as the property of the plaintiff. And it was proved, that shortly after the purchase from Cary, Philips desired a neighbour, Robert Lively, to apply to C. K. Mallory, a lawyer (since dead) to prepare an instrument of writing to secure the title of Celeys and some debts due from Brodie to him; that Lively accordingly desired Mallory to write such an instrument; that Mallory did so, and Lively carried the draft to Philips; and that this paper was after-wards executed by Brodie; Philips remarking, at the time, that if they were all to live, there would be no necessity for such an instrument, to which Brodie answered, that it was perfectly right. But only the general purpose of this instrument, was proved; its precise contents were not proved, nor was it ascertained what had become of it.
    There was no proof, and no reason to suspect, that Kennedy, when he made the sale of Celeys, or indeed, until this bill was filed, had any notice, that Brodie held the legal title of Celeys, in trust for Philips and his heirs, or otherwise than simply and absolutely as his own.
    But there was proof, that Parker and Hubbard, both, had been informed before any part of the purchase money was paid, and before Parker’s sale of the land to Hubbard, that Brodie had purchased it for the benefit and in trust for Philips; and that they had both heard, that Brodie had executed a bond to Philips to convey the title to him or his assigns; which bond, it was suspected, had come into Brodie’s hands after his marriage with Mrs. Goodwin, and had been destroyed bjr him.
    The chancellor, declaring that Brodie had held the legal estate of Celeys in trust for Philips and his heirs, and that Philips being an alien, that trust was, in effect, a trust for the commonwealth, which, by the acts of assembly of 1825-6 *and of 1826-7, was now vested in the plaintiff; therefore, decreed, that Hubbard should surrender the possession to him, and that the defendants should make him conveyances and releases of the estate. And he ordered accounts to be taken, of the profits of the estate, received by Brodie from the time of his marriage with Mrs. Goodwin in 1811, till his death in 1819; by Brodie’s executors or either of them, from the time of their testator’s death till the sale made by Ken-I nedy to Parker; by Parker from the time of his purchase till his sale to Hubbard; and by Hubbard since; andan account of all damages done to the land by Hubbard, since he had been in the occupation of it; and accounts of the estate of Brodie, and of the transactions of his executors, Kennedy and Nimmo, in the administration of his estate.
    From this decree, Hubbard and Parker, immediately, appealed to this court.
    The commissioner, notwithstanding the appeal, proceeded to take all the accounts ordered by the decree. And he reported, that the profits of Celeys, received by Brodie from his marriage with Mrs. Goodwin till her death, amounted to 62S dollars; ' that the estimated profits received by Brodie, from his wife’s death till his own, amounted to 600 dollars; that, after Brodie’s death, Celeys was rented out, and that the rents from that time till the sale to Parker, were received by Kennedy, and amounted, principal and interest, to 1184 dollars, chargeable to Kennedj'; that the estimated profits during Parker’s occupation, were 88 dollars; and during Hubbard’s 989 dollars. The commissioner also reported accounts of the administration of Brodie’s estate by his executors; by which it appeared, that (excluding what had been received by Kennedy, from Hubbard, on account of the purchase money of Celeys,, as not being a just credit to the estate) there was a balance due from the estate to Kennedy of 2508 dollars; and that upon Nimmo’s account of administration, there was a balance due from his estate to Brodie’s, of 2154 dollars.
    *Upon this report coming in, the chancellor decreed, that Mrs. Nimmo, the administratrix of W. Nimmo the deceased executor of Brodie, should, out of the assets of Nimmo’s estate in her hands, pay the plaintiff the sum of 600 dollars (being the estimated amount of profits received by Brodie himself after the death of his wife) with interest from the date of the decree till paid; and that Kennedy should pay the plaintiff the sum of 1184 dollars, with interest on 851 dollars, part thereof, from the 1st September 1829; (the date of the commissioner’s report) this last sum being the nett' balance of rents received by Kennedy from the time of Brodie’s death till the sale to Parker. But Parker being now dead, and the cause pending in the court of appeals as to Hubbard, the chancellor, forbore to make any decree against either of them, in respect of the profits.
    And from this decree Kennedy and Mrs. Nimmo appealed.
    Leigh for' the appellant Hubbard, and Stanard for the appellants Kennedy and Nimmo.
    The appellee can only claim under the act of assembly of 1825-6, such interest as the commonwealth had in Celeys; and the commonwealth’s rights thus granted to the plaintiff, are placed on the ground, that Brodie held the legal estate, in trust for Philips, an alien, and that Philips’s trust estate was escheatable in equity. Suppose Brodie took and held the legal estate, upon a simple trust expressly declared by deed for Philips and his heirs and assigns; was such a trust estate of an alien, in its nature, an escheatable interest? Such a trust estate is no wise different from a use in lands before the statute of uses; and we know from the best authority, that one of the reasons for passing the statute of uses, to transfer uses into possession, was, that the practice of conveying lands to uses defrauded the lord of his escheat; 2’ Black. Comm. 231, 2. Hence, it appears that a use in lands was not an escheatable interest. If A. enfeoff B. to the use of C. and B. the feoffee to uses, is attainted of treason, the king shall have the land discharged of the use; *Harg. Co, Litt. 13, a, note 7; Pimb’s case, Mo. 196. In the case of a devise of lands to an alien, upon trust to sell, the legal estate in the alien, though only a trustee, is escheatable to the crown; Pish v. Klein, 1 Meriv. 431. It is then, the legal estate that es-cheats, in consequence of the incapacity of the feoffee to uses, or of the trustee, to hoi d it, or of his attainder, not the use or tru st estate, by reason of the incapacity or a attainder of the cestui que use or cestui que trust. Por, so long as there is a person holding the legal estate, capable to hold it, there is no want of a tenant owing allegiance and service to the state in respect of the land held, no matter to whose use, or upon what trust, he holds. Thus, if there be lord and tenant, and the tenant enfeoffs J. S. and declares no use; the cestui que use [that is, the feoffor himself] does felony and is attainted; the lord shall not have a subpoena to have the land; and it seems the heir of the feoffor shall not have it, for there is corruption of blood; and, therefore, it seems, the feoffee shall retain it to his own use; 10 Vin. Abr. Escheat, A. pi. 16, p. 140. And upon the like principles was decided, in modern times, the case of Burgess v. Wheate, 1 W. Blac. 123; 1 Eden, 177, S. C. In Holland’s case, 1 Roll’s -A.br. 194, 534; Alleyn, 14 S. C. it was held, that, if an alien purchase a copyhold in fee in the name of J. S. in tust for him and his heirs, upon office found that J. S. had the legal estate in trust for the alien, neither the copy-hold nor the trust was escheatable at law, but the king must sue in chancery to have the trust executed for his benefit. And in Attorney General v. Sands, Hardr. 488, 495, where the question was whether a trust estate of a person attainted for felony, was forfeited to the crown, Hale, chief baron, said “I hold that such a trust in an alien is forfeitable, and will belong to the king, as was held in Holland’s case” &c. It is obvious, that this remark of Hale, was extrajudicial, and founded wholly on Holland’s case; and that, as to Holland’s case, the point adjudged was that the trust estate in a copyhold was not escheatable at law, and that the court did not *and had no jurisdiction to adjudge, but only said obiter, that the king should sue in chancery to have the trust executed for his be'nefit. And these are the authorities upon which the elementary writers have repeated the opinion, that, though a trust estate in an alien be not escheatable at law, it is in effect escheatable in equity; that the crown may, in chancery, compel the execution of the trust for its own benefit. But all those opinions have reference to cases of express trusts. Here, Brodie did not take and hold Celeys upon any trust for Philips the alien, expressly declared; at least, we think, there is no proof of any such express trust. It appears, indeed, that an instrument of writing was drawn by Mr. Mallory, and executed by Brodie to Philips in his lifetime, for the purpose of securing the title of Celeys to Philips; but the contents of that instrument, in other words, the scheme devised by Mr. Mallory to effect the object, has not been ascertained. It is surmised, that Brodie got possession of this paper, after his marriage with Mrs. Goodwin, and destroyed it: but this is only surmise and suspicion: and the evidence of his repeated admissions, after his marriage and even after his wife’s death, that he had purchased the land as Philips’s friend and for his benefit, that it had been paid for with Philips’s money, and that it was not his own property, ought to relieve his memory from this suspicion; for, if he destroyed the paper, he could have had no other view in destroying it, but to conceal its contents; that is, to conceal what his subsequent repeated admissions evince he had no care to conceal. If the court will found any decree upon the supposed contents of this lost paper, and make an effort to ascertain them by inference from the circumstances of the case; what, probably, were the contents of it? Was it a simple express declaration that Brodie held, and should hold, the estate in trust for Philips, his heirs and assigns? Mr. Mallory would hardly have hit upon such a device as that, of all others the most likely to endanger and defeat the object, which it was the design of the instrument to accomplish. It was, most probably, a covenant, *or bond with condition, that Brodie should convey the legal title to Philips or his heirs, whenever he or they should become citizens of the U. States. The answer which Brodie made to John Goodwin, when he demanded a conveyance, was exactly conformable with such an obligation: he refused to convey to Goodwin, because he was an alien, but said, that whenever Philips’s heir at law should become a citizen, a conveyance to such heir should be immediately executed. And if this was the purport of the lost instrument it was only an executory contract entered into by a citizen with an alien, to convey lands to him when he should become a citizen. And then the question will be, whether such an executory contract gives to the alien covenantee, such an interest in land, as is escheatable, in law or equity, to the commonwealth? Surely, the commonwealth ■cannot demand specific execution of such a contract, and that in anticipation of the event on which the covenantor stipulated to execute it, in order to have the benefit of the escheat. Throwing the lost instrument out of the case, the plaintiff can only rest the claim of the commonwealth, in whose place he stands and whose rights alone he is intitled to demand, on the resulting trust to Philips, implied by law, from the fact that the estate conveyed to Brodie, was purchased and paid for with Philips’s money. In Sanders’s note upon Lloyd v. Spillet, 2 Atk. 150, note 2, it is said, that “if the consideration money is expressed in the deed to be paid by the person in whose name the conveyance is taken, and nothing appears in such conveyance, to create a presumption that the purchase money belonged to another, then parol evidence cannot be admitted, after the death of the nominal purchaser, to prove a resulting trust, for that would be contrary to the statute of frauds — 'but if the nominal purchaser, in his lifetime, gives a declaration of or confesses the trust, this takes it out of the statute;” and the authorities are cited for both branches of the proposition. Whether the declarations made by Brodie in his lifetime, on the subject of the estate in question, were such as takes *'this case out of the statute of frauds, is submitted to the court. Taking it that they were so, can there be such a resulting trust for an alien, so as that it shall escheat as his property to the commonwealth? Where land is purchased and paid for with the money of one person, and the conveyance taken to another, a trust results for the person who pays the purchase money; but this resulting trust is the mere creature of the law; it is the act of the law that creates or implies the trust estate. Now, an alien may take by purchase, though he cannot hold; but by act of law he cannot take, as by descent, curtesy, dower, guardianship. 7 Co. 25; 1 Bac. Abr. Alien, C. p. 132. And since equity is only part of the law, no trust estate can be implied for an alien, in equity. In this view of the case, therefore, Philips had no interest in Celeys, legal or equitable, es-cheatable to the commonwealth, at law or in equity; and, consequently, the plaintiff has no right to the land. But, supposing that the trust, estate was in Philips; and such a trust estate as equity, following the law in respect to the escheat of legal estates purchased by an alien, would seize for the commonwealth; and supposing that Parker and Hubbard purchased with notice of the trust; they cannot be charged with any fraud; for they purchased with the knowledge and assent of the plaintiff’s agents at the time, and to promote the plaintiff’s interest ; and it would be hard and inequitable, that they should suffer loss, because he thinks proper to relinquish his claim under Brodie’s will, and make his appeal to the liberality of the legislature. At any rate, equity to such a case, will not go beyond the law in cases of escheats; and therefore, this decree is certainly erroneous in giving the plaintiffs the profits; since, in cases of escheats at law, the commonwealth never recovers profits accrued before office found. 3 Wheat. 589. There is no process or remedy provided for the recovery of profits of lands escheated, previously accrued, and no instance of an account or recovery of such profits.
    ^Johnson for the appellee.
    The question is, Whether Philips took such an equitable estate in Celeys, as that, if he had been a citizen, he could, in equity, have compelled the execution of the trust by Brodie? and if so, Whether, as Philips was an alien, the commonwealth could, In equity, compel the execution of the trust for her own benefit? There is no necessity, to maintain, that, if lands be purchased and paid for with an alien’s money, and the conveyance of the legal estate be made to a citizen, admitting that this is only a trust implied by law and resulting to the alien, it is such a trust estate as is, in equity, escheatable to the commonwealth. If there were any occasion to maintain the proposition, it might, I should think, be maintained w’ithout difficulty. For , an alien may purchase and take real estate, as well as a citizen ; the law permits him to do so; but he cannot hold: he may purchase but he purchases for the benefit of the commonwealth. Neither is the disability of an alien to hold freeholds, or chattels real, for his own benefit, considered as a penalty or forfeiture, but it arises merely from the policy of the law, and therefore it has been held, in equity, that he cannot demur to a discovery of any circumstance necessary to establish the fact of alienage. Attorney General v. Duplessis, 2 Ves. sen. 286; 1 Bro. P. C. 415. But here, there was an express trust. There was a bond or covenant executed by Brodie to Philips, to secure Celeys to him; an instrument, which Brodie probably suppressed, since he had the opportunity, and was the only person that had any interest, to suppress it; and the contents of this instrument are sufficiently ascertained to have been a declaration of the trust, by the fact, that Brodie did hold the legal estate, upon a simple trust for the use of Philips; that Philips held the possession during his whole life, and his heir at law held it after-wards, and enjoyed the whole profits. But, throwing the lost instrument out of the case, Brodie’s letters, admitting that Celeys belonged to T. F. Goodwin, the grandson of Philips, and heir at law of his daughter, contain a sufficient written acknowl edgment of *the trust on which he held the legal estate. Nay, his parol admissions and declarations of the trust, would suffice to establish it: the case, in its very nature, is not within the statute of frauds: like the case of a deed absolute on its face, but intended and delivered as a mortgage, the trust may be established by parol proof. Sugd. law vend. ch. 15, § 2, p. 443-6; Boyd v. M’Bean, 1 Johns. Ch. Rep. 482, where the cases are reviewed by chancellor Kent. Taking it then, that Brodie held the legal estate of Celeys, upon an express trust for Philips, the alien, it is impossible to doubt, that as the legal estate, if that had been purchased by and conveyed to the alien, would have been escheatable to the commonwealth at law, so this trust estate purchased by him enured to the commonwealth, and equity would compel the execution of the trust for her benefit: if it were otherwise, the law which inhibits an alien from holding lands for his own benefit, and declares, that he can only purchase for the benefit of the commonwealth, would by this simple device, be reduced to a dead letter. King v. Holland, 1 Roll’s Abr. Alien, A. pi. 8, p. 194, 534; Alleyn, 14, Stiles, 20, 40, 76; Attorney General v. Sands, Hardr. 488, 495 ; 3 Ch. Rep. 33, 35; Karl of Somerset’s case, Hob. 214; Cro. Jac. 512; Commonwealth v. ^Martin, 5 Munf. 117, 140, 141, 143; 1 Com. Dig. Alien, C. 2, 557; 1 Bac. | Abr. Aliens, C. 134; 2 Kent’s Comm. 54. Neither does the case of Burgess v. Wheate, 1 Kden, 177, conflict with these authorities; besides, in that case, lord Mansfield dissented (and upon the strongest reasoning) from the opinion of lord keeper Henley and sir Thomas Clarke. The appellee, then, is entitled by the grant of the commonwealth, to the land in question. And the commonwealth was, and by consequence the appel-lee is, entitled to the profits from the death of Philips. For the title and the right to the possession of the land, vested in the commonwealth, immediately upon the death of Philips, without any office found. Harg. Co. Hitt. 2, b, note 5; Willion v. Barkeley,
    Plowd. 229; 2 Kent’s Comm. 47, 53.
    
      
      Aliens — Capacity to Mold Lands — Trust and Legal Estates. — In Cross v. De Valle, 6 Fed. Cas. 889, it is said: “When a trust is perfected in favor of an alien, the crown may be entitled., yet when a trust in favor of an alien is not in esse-, but only in .fieri and executory, the court will do no act to give it to an alien who by law cannot hold. Lewin, Trusts. 43. This subject was discussed with much learning and ability in the case of Hubbard v. Goodwin, 3 Leigh 492. by the court of appeals of Virginia; and the court sustained the conclusion that a trust estate acquired, by an alien is acquired for the state, and that a court oi' equity will compel the trustee to execute the trust for the benefit of the state.'’ See also, citing the principal case on this subject, Dunlop v. Harrison, 14 Gratt. 258, 259, 265.
      See generally, monographic note on "Escheat" appended to Sands v. Lynham, Escheator, 27 Gratt. 291.
      iDecrees — Between Co-defendants— When Proper.— Where the pleadings and proof show no right of the plaintiff to relief against any defendant there cannot be a decree between co-defendants. McKay v. McKay, 33 W. Va. 735, 11 S. E. Rep. 217, citing Hansford v. Coal Co., 22 W. Va. 70; Hubbard v. Goodwin, 3 Leigh 522. To the same effect, the principal case is cited in Radcliff v. Corrothers. 33 W. Va. 694. 11 S. E. Rep. 232: Western Lunatic Asylum v. Miller, 29 W. Va. 332, 1 S. E. Rep. 744: Watson v. Wigginton, 28 W. Va. 568: Blair v. Thompson, 11 Gratt. 452 (see also, foot-note;) Ould v. Myers, 25 Gratt. 405, and footnote: Thorntons v. Fitzhugh. 4 Leigh 220. Also on this question, the principal case is cited in Strother v. Strother, 1 Va. Dec. 374. where it is held that wherever a case is made out between defendants, by evidence arising from pleadings and proofs between plaintilfs and defendants, a court of equity is entitled to ina&e a decree between the defendants and is bound to do so. To the same effect, see Ruffner v. Hewitt, 14 W. Va. 738, citing the principal case at p. 746.
      See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   *CARR, J.

The claim of the ap-pellee being founded on the acts of assembly of 1825-6 and 1826-7, granting and releasing to him all the commonwealth’s right, title and interest, in the estate called Celeys, we are to inquire what were the rights of the commonwealth, which those acts granted to the appellee and authorized him to assert by suit at law or in equity? From the facts of the case, it is very clear, there could be no escheat, technically speaking; for the legal estate was vested in a citizen. But it is equally clear that this citizen was a mere trustee, holding the estate for the benefit of Philips the alien. It was a good deal discussed at the bar, whether this trust resulted, by operation of law, solely from the facts that the purchase money was paid by one, and the deed made to another, or was in express trust, raised by the agreement of the parties? Upon my mind, the evidence has left no doubt, that it was an express trust. The statute of frauds has no application to the case, even supposing the proof of the trust rests on parol evidence; as I think is clearly shewn by chancellor Kent, upon a full and very able review of the cases, in Boyds v. M’Lean, 1 Johns. Ch. Rep. 586. The declarations of Brodie, made at various times and on some solemn occasions, are full to prove, that he purchased and held this land for his friend Philips, and never paid a cent or laid the slightest claim to it, and that he said he would make the right, whenever any of the family could receive it. But I do not think it necessary to resort to parol evidence, to shew that there was an express agreement between the parties as to the trust. It is in clear proof, that there was a writing executed, by Brodie to Philips, to secure Celeys. We are not, to be sure, made acquainted with the particular terms of this writing nor ought we (I apprehend) to be too strict in requiring this, when we reflect, how this paper has probably disappeared. Brodie was the representative of Philips, and the husband of his daughter, and in these characters, had a right to all his papers and documents. But, though the paper be lost, the acts of the parties throw a *strong light upon. its probable contents. Brodie held the legal title to guard it from escheat; Philips, and after him his son in law and daughter, enjoyed the full and free use and possession of the estate. The letters, too, of Brodie to old Mr. Goodwin and the appellee, shew, beyond a question to my mind, that he considered himself holding- Celeys for the appellee. I conclude on this point, that here was a clear express trust in Brodie for the benefit of Philips.

Now, we know that, in equity, the trust is the land; the trustee, the mere instrument of conveyance, in no event to take a benefit. In Burgess v. Wheate, 1 W. Black. 161, lord Mansfield uses this strong language: “Twenty years ago, I imbibed this principle, that the trust is the estate at law in this court, and governed by the same rules in general, as all real property is, by limitation. Every thing I have heard, read or thought of since, has confirmed that principle in my mind.” It is, and has long been, I believe, the policy of most nations, to exclude from all participation in the soil, those who owe allegiance to a foreign government. It is a principle deeply rooted in the common law of England, which as to this, is our law. By it, an alien cannot hold land: he may take indeed by purchase, but it is only for the benefit of the king, and so soon as there is an office found, it is seized into the king’s hands; or if he die, the king is seized without office, for otherwise the freehold would be in abeyance, as an alien cannot have any inheritable blood ; by act of law he can take nothing in land, for the law (which, as lord Hale says, nihil frustra facit) will not give him an inheritance or freehold for he cannot keep it. The law, therefore, will not give an alien the benefit of descent, curtesy, dower or guardianship. These positions are too well settled to need a reference to authorities. Would it not seem a strange inconsistency in the law, if principles so vital, so carefully guarded, might be rendered a dead letter by a mere change in the form of conveyances? And yet this-would be very much the case, if by making a citizen the trustee, the beneficial interest of the alien, in the *land, would be placed beyond the reach of the sovereign. Our country might be filled, our farms occupied, by strangers, owing no allegiance, feeling no attachment, to our government, and adding no strength to our resources; for both their persons, and the wealth they might amass, would be withdrawn in the hour of danger. But the law is not justly chargeable with such inconsistency. In some of our oldest books, we find it laid down, that if an alien purchase land, and take a deed to J. S. in trust for himself and his heirs, the king shall have the land; not, indeed, by an inquest of office, but by a suit in equity. The first case we find on this subject, is that of The King v. Holland reported in several books. The case, as I gather it from the several reports of it, was thus: an alien purchased a copyhold in fee, in the name of J. S. for himself and his heirs; and this being found by an office, the copyhold was seized into the hands of the king; J. S. came and traversed the trust, which was found for the king; j-et the court decided, upon the peculiarity of the copyhold, being a base tenure, that the king could not recover the land itself, for that would make him tenant to the lord, to do service at his court, which the king could not be, but that he must sue in equity to have the trust executed. Lord ■ Hale was of counsel in this case, and we see the account he gives of it, in the case of The Attorney General v. Sands, also reported by several hands. In Hardress, 495, he says, “I hold that such a trust in an alien is forfeitable, and will belong to the king, as it was held in 23 Car. 1, in Holland’s case: and the reason is, because, an alien has no capacity to purchase for the benefit of any other but the king. And it would otherwise be inconvenient, that aliens should receive the profits of lands to their own use; and the mischief would be the same as if aliens purchased the lands themselves.” Again, in a report of the same case, 3 Ch. Rep. 130, 133, it is said, that an alien, who is cestui que trust of any estate, such estate belongs to the king. And the chief baron said, that it was the opinion of the judges in Holland’s case, in *which he was of counsel, that an alien hath no capacity to purchase, but for the king’s use. The same law is laid down in 2 Vin. Abr. 258, and in Bac. Abr. and Com. Dig. under the head of alien. In Gilbert on Uses and Trusts, 43, 243, it is also said, “a trust in an alien, is forfeited to the king.” It is not necessary to cite more authorities; these are enough. I, at least, am well satisfied both with the authority and the reason of the cases. I conclude then, that the commonwealth had a right to recover this estate by bill in equity, resembling the escheat at law; and that having transferred this right to the appellee, the decree is correct in decreeing him the land; unless there be something in the case of the purchasers, which should protect them from the interference of equity. It was relied on that they were purchasers without notice; but the record contradicts this; it shews that both Parker and Hubbard had notice of the trust, before they were purchasers.

But I think no rents and profits ought to be given. Such is the settled doctrine in cases of escheat at law; and the reason given there, which I think a very good one, holds equally here.

CABELE and BROOKE, J., concurred.

TUCKER, P.

This case brings into question the rights and capacities of aliens.

An alien may take lands by purchase, but he cannot hold them, except for the benefit of the state. But although he can take by purchase, he cannot take by act of law, as by descent or curtesy; in other words, he cannot take by act of the law, but only by his own act; for the law will not cast the freehold upon him, merely that it may be forfeited. There is, morever, no distinction herein, whether the purchase be by feoffment, bargain and sale, or other deed, or by devise. In all those .cases, as the act of the party, and not the mere act of the law, casts the freehold on the alien, he can take; though he can only hold the estate he acquires, *subject to the right of the state to seize it, at pleasure. This can only be done, however, by office found, or something equivalent thereto. Eor, it is one of the principles of the common law, that the crown can only take by matter of record; a principle established for the security of private-property from the grasp of power. And until 'office found, or some equivalent proceeding, he may hold against all the world, not excepting the state, and is not accountable for rents and profits previously received. 3 Wheat. 589; 11 Wheat. 332. These principles are so elementary in their character,: that it is scarcely necessary to cite authority to prove them. I will refer, however, to 7 Cranch, 613, 618, where all the authorities have been diligently collected.

But though there seems to be no ground for difference of opinion, where the alien takes by purchase the legal title to lands, yet there does not appear to be the same unity of sentiment, in relation to an equitable interest in lands acquired by an alien.

That there are cases, in which the equitable interests of an alien in real property, are vested in the state, it will not be difficult to shew from reason and authority. But that wherever, in the case of a citizen, an equitable interest would be raised, it will be raised in favour of an alien, in order to forfeit it to the state, may, I think, well be questioned.

1. I am of opinion, that equity will never raise a resulting trust in favour of an alien. A resulting trust is the creature of equity. It is raised for the benefit of the party, who, upon principles of justice and the circumstances of the case, is entitled to the subject. Being raised for his benefit, there can be no motive for raising it, when that will pervert it to his prejudice. That which is designed as a boon, will not be changed into a forfeiture. To raise the trust, and thereby forfeit the estate, would be to commit the offence, and make the alien bear the penalty. Accordingly, although there is no case, perhaps, exactly like this; no case, where the court refused to raise a resulting trust for the alien, because *he had paid the purchase money; yet there are cases strongly analogous, in which the court has disclaimed the exercise of a like power, when it could only work a prejudice to the part)’. Thus in Redington v. Redington, 3 Ridg. P. C. 106, 184, where a father who was a papist, had purchased lands in the name of his son, and the question was, whether it should be considered as a trust for the father, or an advancement for the son, it was resolved to be the latter; and a principal ground taken by the chancellor was, that’ to imply a trust would forfeit the lauds, at the very instant the trust should be raised. So in Commonwealth v. Martin’s ex’ors, in this court, where lands were devised to be sold, and the money paid over to aliens, it was argued, that, upon principles of equity, the devisees had a right to elect to take the land; but it was strongly said, 11 Why shall equity do so vain a thing, as to convert an useful principle of equity as to cestuis que trust generally, into an engine of destruction as to alien cestuis que trusts, by supposing an election in them, which they are not permitted to exercise?” “The election given to a citizen, is adopted on the principle of extending a substantial benefit to him. Why will equity suppose, this power in an alien, not as a benefit to him, but merely for the purpose of forfeiting his estate.” 5 Munf. 127. See also Craig v. Leslie, 3 Wheat. 563. So too lord Mansfield, speaking of this right of election in the case of a papist, says, “No: aroman catholic shall not make his election, because there is a law which says, that being a papist he shall not take land.” “In common cases, where money is given to be laid out in land or securities, a common person may elect to take the land, a charity cannot; because it is unlawful; and, therefore, though the election be given, yet one alternative being lawful and the other not, a court of equity says you shall do that which is lawful.” Foone v. Blount, 2 Cowp. 467, 8. Pursuing these principles, and a like course of reasoning, I conclude that equity will never raise a mere resulting trust *for an alien, that it may be forfeited to the state: it will not profess to benefit, when it designs to destroy.

2. I am of opinion, that, in the case of a mere executory contract for a purchase of land, while it yet remains in fieri, no forfeiture accrues. Por until the purchase is complete by the execution of a conveyance, there is a locus penitentise, of which the parties may avail themselves. The act is not yet consummate, which the law has forbidden. If it should never be consummated, there would be no offence against this policy of the law. If the parties, by mutual consent, should rescind their contract, there could be no doubt of their right to do so, and then rio forfeiture could ever accrue. If it were otherwise, then upon a contract to sell to an alien, even before a cent of the purchase money was paid, the land of the citizen would be forfeited, while no penalty would fall upon the alien. But,

3. I am very clearly of opinion, that where for the purpose of evading the law, which prohibits an alien to hold lands, he purchases real estate in the name of a trustee, upon an express or secret trust to be permitted to take and receive the rents and profits, this is such a trust as in reason and upon the well received principles of equity, as well as upon authority, will pass to the state and be enforced at its instance and in its favour.

In reason, indeed, there can be no doubt. The inhibition of the law would be vain and nugatory, if it could be evaded by such a trust. The policy of that rule which denies to an alien the capacity to hold lands for his own benefit, rests upon the ground, that it is unwise to permit the soil of the:' country to be in the hands of the subjects of a foreign power, and its revenues to be enjoyed by them; since the state must be impoverished by transporting the revenues of the land into foregin countries, and weakened by putting a part of its territory under subjection to a foreign prince. Now, in a trust of this description, every evil that can flow from the conveyance of the legal title, equally exists; and hence we shall find, that, for centuries past, it has been held *that the use of an alien shall go to the king. Had not this principle been adopted, the courts must either have permitted the alien to enforce the trust, which would have been a direct infraction of the policy of the law; or they must have held the trustee entitled to the property for his own use, which would have been to hold out to him the wages of treachery.

The well received principles of equity concur in sustaining this position. Trusts are considered as the legal ownership, governed by the same rules, and liable to the same charges. The trustee is considered as merely the instrument of conveyance. He is treated as a mere machine used to effect a transfer to the cestui que trust, and is called a conduit, because without deriving any benefit himself, he serves merely to conduct the beneficial interest to another. The cestui que trust, on the other hand, is regarded as the real owner of the estate, and the declaration of the use or trust as the essential part of the instrument. Though courts of law look upon the clause, which binds the feoffee to permit the cestui que use to enjoy the land, as nothing, courts of equity look upon it, as every thing. How, then, is the policy of the law sustained, if the alien may be permitted to become the actual owner, the real beneficiary of the land? if, by this arrangement, he is permitted actually to hold and enjoy it as the ordinary landholder; to receive its rents to use its resources, to spend them if he resides among us, in the acquisition of an influence which is deprecated by law, or if he resides abroad, to withdraw them to foreign lands, and, so far, to sap the foundations of our strength and diminish the wealth and prosperity of our people, by this •worst of all kinds of absenteeism. I cannot think that such practices can'be endured ; for by such means, foreigners by selecting confidential friends as trustees, might ensure the actual enjoyment of the lands for a very long series of years, if not forever, in direct contravention of the policy of the law; (5 Munf. 140,) and that space in the land would be filled up by persons alien to our institutions, and the subjects *of foreign powers, which ought to be occupied by a faithful yeomanry devoted to the land of their birth or the country of their adoption.

Authority, upon this subject, is, I conceive, equally emphatical. I shall not stop to examine minutely, whether opinions, which have received the sanction of every luminary of the law, from the time of Coke and Roll to our own, were or were not expressed extrajudicially. To the opinion of the venerable sages of the law of ancient times, we are told that great veneration and respect are to be paid, “as evidence that cases have formerly happened, in which such and such points were determined, which are now become settled and first principles.” They are among the fountains, from which we draw the common law; and when Coke or Roll or Hale lays down a principle as received, we may safely receive it as an adjudicated principle. If we consider only as dicta, and disregard accordingly, doctrines for which an express adjudication cannot be produced, the most unquestioned principles would be most in danger; for these are most apt to have their sources hidden, in the recesses of a remote antiquity. Confiding then, as I do, in the weight, of the authorities, there can be no question, that they concur in establishing that a trust for an alien enures to the crown. Besides the short annunciation of this doctrine in the successive abridgments and elementary writers, to which reference has been made in the argument, I shall content myself with the mention particularly of the well reflected declaration of this opinion on the part of lord Hale as chief baron of the exchequer. In the case of The Duke of York v. Sir John Marsham, Hardr. 432, 436, he cites the case of The King v. Holland, in which he had been counsel. There, an alien had purchased a copyhold, which was conveyed to another in trust for him: and in assigning the reasons upon which, as he says, the right of the crown was declared not to be forfeited, there is no intimation of an idea, that it arose from the interest in the alien being merely equitable. On the contrary, the reasons assigned go as well *to deny the right of the king to a forfeiture of the copyhold itself, even if the alien had taken the legal title. In the following year but one, the case of The Attorney General v. Sands, which had been long under consideration was decided by lord Hale. Hardr. 495. Upon that occasion, the doctrine respecting a trust for an alien, was distinctly pressed upon the court in the argument; and his lordship, in delivering his opinion against the forfeiture in that case, distinctly admits, “that the trust of an inheritance in an alien, is forfeitable, and will belong to the king ; as, says he, it- was held in Holland’s case; and the reason is, because an alien has no capacity to purchase for the benefit of any other but of the king. And it would be otherwise inconvenient, that aliens should receive the profits of lands to their own use, and the mischief would be the same as if aliens purchased the lands themselves ; but in that case the king is entitled to the profits only; the land itself is not forfeited to him.”

Here then, we have an explicit opinion of lord Hale upon this point, not resting solely upon that in Holland’s case, but sustained by reasons suggested by his own accurate mind. We also have an explicit statement of the fact that such was the decision in Holland’s case. This statement was doubtless correct, for Hale was of counsel in the case, and his account of the judgment is far more satisfactory than the report in Stiles, in which there appears to me to be some omission, as the resolution of the court no where clearly appears. These decisions, more than 150 years ago, transmitted from generation to generation by the learned, as settled principles of the common law, cannot now with propriety be considered as mere dicta, which should have no influence with the court. As such this court did not consider them in The commonwealth v. Martin’s ex’ors; for there, the only debateable question was, whether the aliens were to be considered as having a trust in the lands; for it seems to have been agreed, on all hands, that, if they had, the right of the commonwealth was not debateable.

*The case of Burgess v. Wheate has been cited. Of this case, I think, it may be truly said, that it is of very doubtful authority. It was decided by lord Northington and sir Thomas Clarke against Jord Mansfield; decided as lord Thurlow says, 1 Bro. C. C. 204, upon divided opinions, and opinions, which continue to be .divided, of very learned men.” And when we find lord Thurlow himself pronouncing, that it was decided “upon the scanty ground of the defect of a tenant,” and declaring an executor trustee of personalty for the crown for want of next of kin, we cannot err very far in placing him on the side of lord Mansfield in this matter. If we do so, the scales are balanced, and the opinions of other learned men will make that of lord Mansfield decidedly preponderate. See 2 Kent’s Comm. 54, citing Sugden’s Gilbert on uses, 86, 404. That learned judge there delivers it as received doctrine, that the crown takes the trust of an alien. There, certainly, can be nothing more unreasonable, I think, than this decision of Burgess v. Wheate, if we consider it in any other light than as a mere question of tenure. That the trustee should be permitted, upon the death of the beneficial owner without heirs, to hold the estate to his own use, is utterly at variance, not only with the principles of equity, which consider him as a mere machine, an instrument, a conduit; which declare that trusts and legal estates shall be governed by the same rules, and that the trust shall descend and pass as the legal estate would descend and pass; but, it seems to me, at variance with the natural justice of the case. It is right and proper, that when the owner of property dies without giving it away, and without leaving any object having natural claims to his bounty, such as heirs or next of kin, his property should go to the community of which he is a member. But, in truth, Burgess v. Wheate was decided on the ground of tenure. It was a question of escheat for want of heirs, not of right in the crown because of alien-age. And it was decided, that there could be no escheat upon the death of the cestui que trust without heirs, because the trustee was in existence *to do the services. It is to me very obvious, that this principle has no application to the case of an alien. That is not (though it is often inaccurately so spoken of as) a case of escheat. The devolving of the rights of the alien on the crown, is arranged by the most distinguished commentator under the head of forfeiture; though, in a case of more recent date than his work, it is said that it is not to be considered as a penalty or forfeiture, but as arising merely from the policy of law; Attorney General v. Duplessis. Be this as it may, it is confessedly altogether distinct from escheat, of which no further evidence need be required, than that, in case of escheat, the property in England goes to the lord of whom the tenant held, whereas in case of alienation, to an alien, it always goes to the crown, even though the land be holden of a mesne lord. Now, though it be true, as decided in Burgess v. Wheate, that the interest of cestui que trust shall not escheat (that is, devolve upon the lord for want of a tenant) because the lord has in fact a tenant in the trustee; yet it surely does not follow, that the trust estate of an alien, shall not devolve on the crown, for the same reason; since the want of a tenant is not the reason upon which it ever devolves on the crown. The case of Burgess v. Wheate has, therefore, I conceive, no application here.

After the preceding view of the state of the law which bears upon this case, I proceed to remark, very succinctly, upon the facts as they appear to me. I am clearly of opinion, that the doctrine of resulting trusts does not apply to the case. There is no room for a resulting trust where there is an express trust; and here, I think, there was an express trust, in writing, to permit the alien to take and enjoy the rents and profits to him and his heirs. That the land was purchased with Philips’s money is admitted: that Brodie always acknowledged that the property was not his but Philips’s is certain. Prom these circumstances, I should infer that, ab ovo, there was an understanding between Brodie and Philips, that the former was to purchase the land *in his own name, and hold it for the latter. Such an understanding was an express trust though verbal.

But it was not a mere verbal trust. It was a trust in writing. That there was a writing executed by the parties, is perfectly clear; and this fact of itself puts the statute of frauds out of thé question; for, if the trust or bargain whatever it was, was reduced to writing, the statute cannot apply, even though the contract or writing be lost. What was the precise nature of that writing, we are not informed by the witnesses. They state, however, that it was a writing to secure the title of Celeys. It was executed in Philips’s lifetime, and the conduct of the parties amply supplies the defect of the testimony of the witnesses. Was it a bond to make a title? Philips was an alien, and could not take one; else, the deed might have been made to him in the first instance. Was it a bond to make him a title when he should become a citizen? If so, we should probably have heard of his taking some steps towards it. Nothing of that sort appears: no attempt at naturalization appears to have been made, though the facilities to admission had been, before 1805, the date of this transaction, very much increased.

These considerations shew, negatively, what was not the character of the written instrument. The acts of the parties shew pretty clearly, what was the character of the arrangement between the parties; and it would seem natural to suppose, that the writing contained the arrangement, whatever it might be. What was the arrangement? I answer, that Brodie should continue to hold the estate in his own name, but should permit Phi-lips to enter upon the estate, receive the rents and profits, enjoy it as his own, and have it completely under his control. That this was the arrangement is to be presumed, because this was actually done. Philips did take possession ; did enjoy, did receive rents and profits, did have complete control of the estate, and died in possession. After his death Goodwin and wife, both aliens, entered, in right of the wife, and held until his death, in the same manner. After Goodwin’s death, Mrs. Goodwin, *still an alien, continued to hold in the same manner, until she married Brodie in 1811; and after the marriage, Brodie and herself resided on the property until 1815, when she died. What are we to infer from these facts, but that, although the land was held in Brodie’s name, it was arranged between him and his friend, that that friend, though an alien, should be permitted to hold, enjoy and control the estate as his own, under the shadow and protection of the deed from Cary to Brodie. A more complete trust cannot, I think, be conceived, and the right of the commonwealth is a necessary consequence. This right might properly have been asserted in the court of chancery, even in Philips’s lifetime; but since, by his death, the title was devolved on the state, without an office found, there can no longer be a question as to that matter. Moreover, the right of the commonwealth is transferred to the appel-lee, and he is empowered to assert it in any court of law or equity.

Having thus arrived at the conclusion, that the commonwealth had the right, and that the plaintiff is invested with that right, we next proceed to the defences.

Neither Parker nor Hubbard were purchasers without notice of the trust. If they had so purchased, they would not have been affected by the trust. Yet they must have shewn payment of purchase money, and the receipt of the conveyance to protect them. But, in truth, it is clearly proved they had both sufficient notice, not only before one cent of the money was ever paid, but before Hubbard even became the purchaser.

It was said, this sale was authorized by the guardian and counsel of the appellee. No such authority could have been given by him, for he was an infant; and it was not, therefore, possessed by the parties who exerted it. In fact, at that time, the commonwealth, and not Goodwin, was the party interested.

As to the profits: The commonwealth (or Goodwin who stands in her stead) can come into equity only upon the principle, equitas sequitur legem. They rely that trusts *must be treated as legal estates, and upon that ground assert the rights of the state. If so, then the principle must be followed up to its consequences. We cannot blow both hot and cold. If equity follows the law, it must follow it throughout. Now, at law, until office found, the alien may receive the rents and profits and shall never be accountable for them. 3 Wheat. 563, 589. And this is the consequence, I take it, of the fact, that there is no remedy for such profits. In Wheaton, no case is cited in support of the position; but it seems sufficiently obvious upon this ground simply. The office found merely ascertained title of the crown, whereupon it entered by its officers. But no damages were provided for, nor were damages ever found by the inquest, nor is any remedy devised for the recovery of them. And this was equally the case, whether the alien himself or any other took the profits. Upon office found, they could not be recovered. Now, equity in following the law', cannot go further than the law. Equity, therefore, cannot decree rents and profits. The alien or any other person ma3r take them without accountability, until office found or until some equivalent proceeding. What is the equivalent proceeding in this court? The decree. The office found ascertains the title of the crown, and vests the possession. That is the effect here of a decree, and until the decree there is no such effect. Therefore, I am of opinion, that so much of the decree of the court of chancery as decrees a title to be made to the appellant be affirmed, and, as to all other matters, that it be reversed.

I am clearly of opinion, that the court ought not in this cause to undertake to adjust the transactions between Hubbard and Kennedy. None of the cases in which the court has decreed between defendants, have gone so far. I think it has been done in no case where the plaintiff was not entitled to a decree against both or either. The practice should not be extended further. The contest, if any, between defendants can never come fairly before the court. There is no issue made up, nor any provision for taking *their testimony in reference to the peculiar matters in difference between them. Indeed, it does not follow, that in answer to a plaintiff’s bill, the defendant should go on to state his own case in reference to his difference with his co-defendant.

However, as the appellants were both properly made parties in the court of chancery, in reference to the question of title, they must pay the costs of that court. They must have their costs here.

Both decrees reversed, so far as they directed an account of profits, and decreed the payment of the profits by Kennedy and Nimmo’s administratrix, and the first decree, for the land itself, affirmed.  