
    Turner v. Street.
    March, 1824.
    Equitable Conversion — Reconversion — Election — Iffi-tant. -Where land is devised tobe sold, and the proceeds paid to an infant, the infant has an election to take the land or money; and if his guardian sells the land, and the sale does not appear to be advantageous to the infant, a Court of Equity can elect lor him, and bind him by such election.
    This was an appeal from the Richmond Chancery Court/ The case was argued in this Court by Wickham for the appellee, no counsel for the appellant. The following opinion will be a sufficient report of the case:
    March 6.
    
      
      Equitable Conversión— Reconversion.- — See mono-graphic; note on "Conversion and Reconversion’' appended to Vaughan v. dones. 23 Gratt. 444.
    
    
      
      Sasue — Same—Election—Infant.—When money is directed to be turned into land, or vice versa, the person entitled may elect in which way he will take, whether as money or land; but an infant cannot elect, though a court of equity may elect for him. Pratt v. Taliferro. 3 Leigh 428, citric principal case as authority. To the same effect, the principal case is cited in Pierce v. Trigg, 10 Leigh 420; Tabb v. Cabell, 17 Gratt. 17,‘i. On the subject of equitable conversion, the principal case-is also cited in Bell v. Humphrey, 8 W. Va. 19.
    
   JUDGE GREEN,

delivered the following opinion, in which the other Judges concurred.

Jedediah Turner devised his land, supposed to contain 400 acres, to his sister Susanna Turner, upon condition, *tliat, within a limited, time, she should pay oue-tliird of its value to the children of his sister Polly Atkinson, and one-third to the children of his sister Sally Blackwell. But, if she failed to pay as aforesaid, then the land was to be sold, and the money divided, between Susanna, and the children of his other two sisters. Susanna elected lo take the land, and pay for it according to the will. Sally Blackwell was appointed guardian of all her children, who were, and still are, infants. The land was valued, and Susanna paid to the children of Mrs. Atkinson what they were entitled to. Blackwell, the husband of Sally, being dead, and indebted to Susanna Turner, as executrix of Jedediah Turner, it was agreed between .Susanna Turner, then Dowles, and Mrs. Blackwell, that the said debt should be discounted against the sum due to the children of the latter, on account of the land;, and that Mrs. Blackwell should take, in full of the residue due to her children, 110 acres of the land which had belonged to the testator. In pursuance of this agreement, Mrs. Blackwell gave to Susanna, a receipt iu full of the sum due to her children, and the latter gave to the former her bond to convey the said 110 acres to her when required. This bond does not speak of Mrs. Blackwell as the guardian of her children, but is given to her individually. Mrs. Blackwell was put into possession of the land. The appellee being very anxious lo procure this land, and anxious to conceal his wish, employed Austin Thacker to purchase it from Mrs. Blackwell, for him. Thacker, accordingly, treated and agreed with her for the. purchase; but, before any writings were signed by the parties, Mrs. Turner informed Thacker, in the presence of Mrs. Blackwell, that she had given the land in satisfaction of the sum, which she owed to Mrs. Blackwell’s children; and insisted, moreover, that the land belonged to the children, and that it had been intended for them. Mrs. Blackwell admitted, that it was taken iu satisfaction of what was due to her children, but insisted that she had a right lo sell it. *Mrs. Turner also objected, that it was probable that the land would not hold out 400 acres; and, if so, that the 110 acres would be more than ought to have been given, for the satisfaction of the children’s claim; and that the 110 acres, being assigned for that purpose, upon the supposition, that the whole tract contained 400 acres, if it fell short, there ought to be a rateable deduction. It was thereupon agreed between Mrs. Turner, Mrs. Blackwell, and Thacker, that a survey should he made, and the 110 acres be added to, or taken from, iu the event of .the whole tract containing more or less, in the proportion that 110 acres bears to 400: that Thacker should secure to Mrs. Blackwell the payment of the purchase money in instalments; and that Mrs. Blackwell should convey the land to him. An agreement to this effect was signed by all the parties; which agreement was assigned within a few days to the appellee. Mrs. Turner and Mrs. Blackwell refusing to carry this contract into effect, Street filed his bill against them, and the children of .Mrs. Atkinson and of Airs. Blackwell, claiming the specific execution of the contract. Mrs. Turner and Mrs. Blackwell resisted this claim, upon the ground, that the land belonged to the children of the latter, and that they had been over-reached in the contract. The Court of Chancery decreed a specific execution of the contract; and the defendants appealed.

Mrs. Blackwell took this land, in satisfaction of her children’s claim, at 35 or 27 shillings per acre; the valuation, at which the commissioners, in pursuance of Turner’s will, had valued it. She sold it to Thacker, at $0 35, per acre, and pending the suit, it is proved to be worth from $7 to $10 per acre. If, therefore, the children of Mrs. Blackwell had an equitable right Lo the land, or Lo the money proceeding from the sale to Thacker, and could assert their, claim to the one or the other, at their election, no Court of Equity should have deprived them of that right, unless it appeared to be manifestly for their advantage, to confirm the sale; in which case, a Court of Equity *could elect for them, and bind them by such election. 1 h'onb. Equ. 88, note f, and the cases there cited; 3 Johnson’s Ch. Cas. 190. The infant children of Mrs. Blackwell had such right. The property was pm chased by their guardian and trustee, exclusively with a fund belonging to them; and both Airs. Turner and Mrs. Blackwell affirm. that it was purchased for them, or rather taken as theirs, in lieu of the money due to them. These facts were distinctly known to Thacker, the acknowledged agent of Street, before he purchased for the latter. It was affirmed by Mrs. Turner; and, although Mrs. Blackwell insisted on her right to sell, she admitted that she had taken the land, in lieu of the money due to her children; and the very terms of the contract, signed by Thacker, shew clearly that the land was taken, as the due proportion of the children, according to their interest, in the whole tract of land. If, under these circumstances, Mrs. Turner had conveyed to Mrs. Blackwell, and she to Street, the latter would have been a trustee for the children of Mrs. Blackwell. The statute of frauds in England requires, that all trusts shall be declared in writing, except such as arise by implication of law, which are thereby left as at common law. By the common law, resulting trusts might be raised and supported by parol proofs. It was at one time doubted, whether, notwithstanding the exception of resulting trusts out of the English statute, it was not required by the general spirit of the statute, that resulting trusts, if denied, should be established by written evidence, and not by parol proofs. But, the better opinion seems to be, that even under the English statute, a resulting trust may be raised by parol proofs. It was, however, never doubted, that a resulting trust, confessed by the trustee, was valid. 2 Fonb. Equ. Book 2, chap. 5, and notes; Bac. Abr. Trust, C. passim; Foster v. Colvin, 3 Johns. Rep. 216. This provision of the English statute of frauds, has not been adopted into our Code. With us, the doctrine of resulting trusts remains as at common *law. This, however, is not material in this case, since, even according to the English cases, there would be, in this case, a trust for the children, even if the land had been conveyed as aforesaid. If a man purchase land, and cause it to be conveyed to another, there is a resulting trust raised, by operation of law, for the purchaser; and, if a trustee purchase property with the trust funds, there is a resulting trust for the cestui que trust; so that he may either claim the beneficial right to the property, or, at his election, claim a lien upon the property, for the security of his money invested in it. In such cases, the purchaser, even of the legal estate, much more so of a mere equity, from the trustee, with notice of • the trust, stands in the shoes of the trustee. See the books before cited. This last mentioned case is precisely the case at. bar. The proofs in the cause indicate, that it is against the interest of the infants, to carry the contract in question into specific execution. But, this may be otherwise. The proper course was, to refer it to a commissioner to enquire and report, whether it would be for the interest of the infants to confirm the sale, or otherwise. The decree-should, therefore, be reversed, and the cause remanded for further proceedings to be had therein, in conformity to the foregoing views. 
      
      Judum Bkookio, absent.
     