
    Thompson vs. Branch.
    CHANCERY. Trust, how created — resulting or implied. An unsealed written acknowledgment or memorandum by a party clothed with the legal title of land, that another ís'interested in it a certain number of acres, will not raise a trust to convey the quantity specified, without proof of a consideration paid to the party making the acknowledgment or memorandum. A trust cannot be implied, except upon a consideration proved.
    The State of North Carolina, by patent, No. 855, granted to William Branch a tract of 5000 acres of land, situated in Bedford county. At his death, it descended to bis heir at law, John Branch. At October term, 1794, of the court of pleas and quarter sessions, for Halifax county, North Carolina, Edward Crowell recovered a judgment against the administrator of William Branch for 500 pounds North Carolina currency. On the 29th of June, 1811, Crowell sued John Branch, as heir of William Branch, upon this judgment in the county court of Williamson county; and at October session afterwards, recovered judgment, by default, for $1000 debt, and $1015 damages, all of which he released except $649 40. To have execution of this judgment, afi. fa. was issued on the 21st of October, 1811, which the sheriff of Bedford levied on the 5th of December, on the land above mentioned; and returned the execution, with the levy endorsed, and that he had not time to advertise and sell. On the 21st of January, 1812, a venditioni exponas was issued, to which the sheriff made return that he had sold the land on the 21st of March, for $100, to John Warren, to whom he made his deed on the 30th of April, 1812, which was proved in the county court of Bedford at December session, 1812, and registered in the Register’s office there, on the 8th of March, 1813. Warren, by his deed of the 4th of July, 1815, conveyed this land to Joseph Branch. The deed was proved at April term, 1S1G, in Bed-ford circuit court, and registered on the 2?th of May, 1816. Having lost this land by the interference of older claims, and being about to obtain a warrantjobe located elsewhere, Joseph Branch executed the following writing to John Branch— “July 19th, 1820. It is understood between us, that John Branch is entitled to (12) twelve hundred acres of the warrant that is to be drawn, or the land when located, — subject, never theless, to the locator’s part to be taken from it, when ascertained and surveyed, — out of the grant granted to William Branch, after said John Branch pays his proportionable part of the expenses of said land.” Signed — “Joseph Branch.”
    On the 2d of September, 1820, Joseph Branch, being at his residence in North Carolina, wrote to John Branch, advising him that he had that day, received a letter from H. H. informing him that he had drawn his warrants, but that a person, who had a demand against him, had threatened to stop them in fl’s hands by injunction, in order to subject them to that demand. He then remarks that he, John Branch, was acquainted with the particulars of the demand, and his evidence would be important; and in order to preserve the full weight of his evidence, he bad better not let any person know that he was interested in the warrants. He then continues — “I will be out, immediately after the locating takes place, and think you and myself can make a trade, so as for you to take the 640 acre warrant, I have got, for your interest in the k- "e warrant.”
    January 15.
    In 1820, or 1821, Joseph Branch obtained grants for the lands which were entered in lieu of the 5000 acres lost. On the 4th of June, 1823, John Branch, for the consideration one thousand dollars, assigned, by an endorsement on the above quoted memorandum, all his right, title and interest therein to Jason Thompson.
    Joseph Branch died in 1827 without making Thompson a title to the lands mentioned in the memorandum, having devised his real estate to his minor children; and on the 10th of October, 1S28, Thompson filed his bill in the chancery court at Franklin against Joseph Branch’s heirs and personal representatives and John Branch, praying for a specific execution of the contract evidenced by said memorandum. Before the trial, Thompson died, and the bill was revived in the names of his devisees and heirs.
    The defendants, in their answers, declined admitting that any consideration had passed from John to Joseph Branch for the land mentioned in the paper of the 19th of July, 1820; and they called upon the complainants for proof; and in the absence of such proof, they insisted that a court of equity would not execute the contract implied therein, divesting them of title to 1200 acres of the land, and vesting it in complainants.
    No proof of any consideration was adduced by the complainants.
    On the hearing, on the 16th of November, 1838, his Honor Chancellor Bramlitt, dismissed the bill; and the complainants appealed in error.
    Cook & Meigs, for the complainants,
    insisted that it was not necessary in this case, as in ordinary cases, to prove a consideration. The paper itself acknowledges that John Branch was interested in the land granted to William Branch, ,his father. True, the land had been sold for a debt of William Branch; but it had been purchased for a trifle, and sold to Jossph Branch for a sum far less than its value: and the interest which was acknowledged to be in John Branch might have been founded on an agreement that if he would not disturb the proceedings under which the land had been sold, and which they alleged were irregular, Joseph Branch would convey to him some portion of the tract. However this might be, Joseph Branch’s letter, they said, was a delibreate acknowledgment, confirmatory of that contained in the paper sought to be set up by the bill; that John Branch had an interest in the warrants which had been drawn by Joseph Branch. It could not be necessary to prove a consideration to sustain ari undertaking to convey a part of a tract of land, by one of two persons to another, when both of them are acknowleding each other as jointly interested in the land, previous to the issuance of the(first muniment of title. Such an acknowledgment, they insisted, was evidence that they both contributed the means whereby the property had been procured and consequently were at least equitable tenants in common.
    January 16.
    F. B. Fogg & Marshall, for the defendants,
    insisted that there being no proof of any consideration, and the paper itself not implying any, there was no principle upon which the court could be called upon to set up the instrument and give the complainants a specific execution of it. They cited Coleman v. Sarrell, 1 Ves. Jr. 50, 54, 55.
   Green, J.,

delivered the opinion of the court.

The only question in this case is, whether the court ean divest the title to the land in controversy, out of the defendants without proof that their ancestor received a valuable consideration therefor.

It is admitted that in ordinary cases, where one enters into an obligation to convey land to another, such contract will not be enforced in equity, but upon proof of the payment of a consideration: but it is insisted that this case does not depend upon the same principle.

The instrument upon which the complainants’ claim is founded, is in the following words: “July 19, 1820. It is understood between us, that John Branch is entitled to (12) twelve hundred acres of warrant, that is to be drawn,- or the land when located, (subject nevertheless to the locators part, to be taken from it when ascertained and surveyed,) out of the grant, granted to William Branch, after said’ John Branch pays his proportionable part of the expenses of said land.

Joseph Branch.”

As it is stated in this memorandum that John Branch is “entitled to twelve hundred acres,” it is argued, that we are to infer that he did not derive his right from Joseph Branch, and consequently no consideration need be proved.

We cannot recognize the principle contended for. The legal title was in Joseph Branch. If he is forced to part with that legal title, it must be upon the ground that ne holds it in trust for John Branch. But how can a trust be raised, except upon a consideration?

If the proof had shown that Joseph Branch and John Branch were tenants in common in equity, and that by some means, the legal title had been vested in Joseph, this would have raised a trust in favor of John, upon which the court could have acted. But there is no such proof in this case, and we cannot infer it from the use of the word “entitled” in this instrument. It must, therefore, rest upon the ordinary ground of an agreement to convey land; and no consideration having been proved, it cannot be enforced.

Let the decree, dismissing the bill, be affirmed.  