
    The Bank of the United States v. Carrington and Others.
    November, 1836,
    Richmond.
    (Absent OAinani., J.)
    Implied Trusts in Land — Parol Evidence to Prove.— Where land is purchased and paid for by one person, and the conveyance is taken to another, the law will imply a trust lor the benefit of the former; and such purchase and payment may be proved by parol evidence.
    Appeal from a decree of the superiour court of chancery for the Richmond district.
    The bill was filed in August 1822 by George M. Carrington, Richard A. Carrington, George W. Smith and *others, the nephews and nieces of Colonel Richard Adams late of the city of Richmond deceased, and Tabitha Adams and Elizabeth G. Adams, sisters of the said decedent, setting forth, That the said Richard Adams died seized and possessed of a largó real and personal estate, which by his last will and testament he devised and bequeathed to the complainants. That John Adams and Samuel G. Adams the brothers of the testator, who were named executors in the will, proved the same and took upon themselves the execution thereof; of whom Samuel G. Adams was since dead, leaving John Adams the sole executor. That on the 3d of June 1815, Joseph Marx sold and conveyed to Richard Adams the testator, two contiguous tenements in the city of Richmond, being the ground on which the tavern called the Union Hotel is erected; and on the same day Richard Adams executed a deed of trust conveying the said ground to Charles Copland and Samuel Myers, to secure the payment of 28000 dollars due from the said Richard Adams to the said Joseph Marx, payable in three annual instalments. That Richard Adams died without having made any other conveyance or incumbrance of the said property. That the whole debt secured by the said trust deed had been paid off, except about 3000 dollars with interest from some period in the year 1818, which still remained due. That Joseph Marx the creditor had assigned and transferred the balance due him, and all his interest in the deed of trust, to the president, directors and company of the bank of the United States, the legal title still remaining in Charles Copland and Samuel Myers the trustees. That on the 23d of June 1818, John Adams undertook to convey the said ground on which the Union Hotel is situated, with other property, to J. G. Smith, J. Robinson and A. Stevenson, in trust to secure large sums of money due by him to the said president, directors and company. That the complainants do not admit that John Adams had any title to the said property, or *any right to encumber the same for payment of his debts. That John Adams, who, as executor of Richard, had under the will certain powers in relation to the real estate of his testator, had leased the Union Hotel with the appurtenances to John Enders, which lease being shortly to expire, the said Enders had entered into a combination with the president, directors and company of the bank of the United States, and' had agreed to deliver them possession of the hotel and appurtenances at the expiration of his said lease, and they had actually advertised the same for rent at that period. That the complainants were advised, the said president, directors and company had no right, legal or equitable, to the possession of the premises: that if they claimed under Richard Adams’s conveyance to Copland and Mj^ers, and Joseph Marx’s assignment, they could only require a sale of the property to satisfy the balance due them from Richard Adams under the said assignment; and the complainants were willing to submit to such sale for that purpose, or to such decree and order as the court should deem just and right for the redemption of the property, on- receiving a reconveyance from Copland and Myers. That the complainants were advised, that if the said president, directors and company claimed under the before mentioned trust deed from John Adams, they had no right to the possession of the premises, nor acquired any title by the said conveyance, as their grantor had no title, nor any authority to convey the property for payment of his own debts. That the object of the said president, directors and company in endeavouring to get possession of the property contrary to law and right, was apparently to obtain some undue advantage over the complainants; who were apprehensive that if such possession should be obtained, the property would be leased by the said president, directors and company on terms injurious to the complainants, and to tenants who might injure the premises and be unable • to make compensation *for the injury. That the complainants were informed, the combination between Enders and the said president, directors and company had been entered into against the will and consent of John Adams; and they were advised that the same was fraudulent in construction of law, as to all persons interested who should not assent thereto. And that the complainants were willing the court should make such order as might seem just and right, concerning the rents and profits of the property, until their rights in relation thereto could be determined. Wherefore the bill prayed that the president, directors and company of the bank of the United States, John Enders, Charles Copland, Samuel Myers, J. G. Smith, J. Robinson, Andrew Stevenson and John Adams, might be made defendants: that Enders might be injoined from delivering possession of the premises to the said president, directors and company, and the said president, directors and company injoined from taking possession: that an account be directed of the balance due on the deed of trust for the benefit of Marx, and the trustees therein be decreed to release the property to the complainants, on payment of that balance, or on such terms and conditions as the court should deem just and right: that in the mean time such order be made in relation to the rents and profits as should be consistent with equity: and general relief.
    The injunction was allowed.
    With their hill, the plaintiffs exhibited the will of Richard Adams, the deed of conveyance from Joseph Marx to Richard Adams, the deed of trust from Richard Adams to Copland and Myers, and the deed of trust from John Adams and wife to Smith, Robinson and Stevenson for the security of the bank of the United States. The will of Richard Adams was recorded the 13th of January 1817. After bequeathing legacies to his sisters and to a nephew and niece, the testator devises and directs as follows “I give and bequeath to all my nieces and ''nephews except the two herein provided for, to them and their heirs forever, the balance of my property of every sort, kind and denomination. And- for the purpose of making such division with greater facility, I hereby give to my executors, or such of them as may choose to act, full power to sell or otherwise dispose of the whole or any part of said property, in such time and manner and on such credit as to them may seem most beneficial for the whole.” The trust deed aforesaid from John Adams and wife is dated the 23d of June 1818; and the acknowledgment of the said John Adams, and the privy examination and acknowledgment of his wife, are certified by Richard A. Carrington and George W. Smith (two of the plaintiffs in this suit) as justices of the peace.
    Charles Copland, one of the trustees in the deed for securing Joseph Marx, answered the bill, and submitted to the decree of the court.
    The answer of the president, directors and company of the bank of the United States submitted to the decision of the court any question touching the powers which the executors of Richard Adams might be entitled to exercise, under the will, in relation to the testator’s real estate. With respect to the property called the Union Hotel, respondents denied that Richard Adams had any substantial or beneficial interest whatever therein. And they set forth the following as the facts which, so far as they knew or believed, had a bearing on the question of title to the said property. — That John Adams purchased the ground on which the hotel stands, on his own account and for his own use, and by the terms of his purchase was to give personal security and a deed of trust on the property for payment of the purchase money. That Richard Adams having agreed to become personal security, the title to the land was, by direction of John Adams, conveyed to Richard, as a compendious mode of placing in his hands an indemnity *against his said responsibility for the purchase money, ánd for that purpose only, the said Richard having no other interest in the property. That in consequence of this mode of arranging the indemnity of Richard Adams, the notes for the instalments of the purchase money were given by him, with John Adams as the endorser, and Richard executed the deed of trust to Copland and Myers to secure payment of the notes. That after the said purchase by John Adams, and the conveyance in trust by Richard, John Adams proceeded, in the lifetime of Richard and since his death, to erect on the said land, at his own charge, most extensive and costly buildings. That he paid the first of the notes given for the purchase money, in Richard’s lifetime, and the second note and part of the third since his death, so as to leave about 3000 dollars of the principal of the last note unpaid on the 23d of June 1818. That the payments so made by John Adams were principally out of funds obtained by discount of his notes by these respondents, at their office in Richmond, and the means of defraying the large expenditure for the improvements aforesaid, were derived from like discounts. That, in addition to the facts of the said purchase and the payments therefor having been made by John Adams, and large sums expended by him in improvements in the lifetime and under the eye of Richard Adams, a lot on which was a building called the Jews’ synagogue, in the rear of the building erected as the hotel, and of the utmost importance as a covenient appendage to the establishment, was purchased for that purpose by John Adams, and had ever since been used as a part of the establishment; and the lot on which the stables belonging to the hotel were erected, was also purchased by the said John Adams, and, with the stables thereon, had been always used as a part of the establishment. That it was matter of universal notoriety that the lot on which the hotel was erected, was purchased and owned by John Adams; *whose title had never been questioned by Richard Adams or any other person, until after the failure of John Adams. That the very conveyance of the hotel and other property, executed by John Adams and wife to secure the debt he owed to respondents, was acknowledged before and certified by G. W. Smith and R. A. Carrington, two of the plaintiffs, without questioning John Adams’s full beneficial title, or his right to make the conveyance. That John Adams, being largely indebted to respondents as aforesaid by notes discounted for him, the proceeds whereof were partly applied to pay the purchase money of the land in controversy, and to construct the improvements thereon, and being also responsible to them as endorser of other notes to a large amount, did on the 23d of June 1818, together with his wife, execute the said trust deed to Smith, Robinson and Stevenson for the security of these respondents; by which deed the said Adams and wife conveyed the property in controversy, as well as other property, which had been since sold under the deed; and after due application of the proceeds of those sales, John Adams remained indebted to respondents, to an amount probably thrice as great as would be produced by the sale of the hotel and its appurtenances. That after the execution of the last mentioned deed, it was discovered that the lot on which the hotel was erected remained under the in-cumbrance of Richard Adams’s trust deed to Copland and Myers, and that, of the debt thereby secured, there remained due about 3000 dollars with interest from the 6th of June 1818; whereupon, in December 1818, respondenis purchased the said incum-brance, and took an assignment from Marx the cestui que trust; whereby respondents insisted that they acquired the preferable right to call for the legal estate outstanding in Copland and Myers the trustees. Respondents furthermore denied that John Adams was in any manner indebted to Richard Adams’s estate; but if he were, they insisted that such debt; however it *might have originated, could not be respected as a lien, in favour of Richard Adams’s devisees, on the Union Hotel or the equitable interest of John Adams therein, to intercept the rights of the respondents. They controverted the intimation in the bill, that the lease to Endets was made by John Adams as executor of Richard Adams. They said, that about the expiration of the lease, and before the exhibition of the bill, they had sought for and obtained possession of the hotel; and that the executors of Richard Adams, being advised of the rights of respondents, surrendered the hotel to their possession. And they denied all fraud and unlawful combination. ,
    With the foregoing answer of the United States bank, there were exhibited the trust deed of Richard Adams to Cojfiand and Myers, the trust deed of John Adams to Smith, Robinson and Stevenson, and the assignment of Joseph Marx the cestui que trust in the first mentioned deed. This assignment purports to be made by Joseph Marx, with the assent of Copland and Myers the trustees, and of John Adams, testified by their signing the instrument; and it is signed and sealed by Marx, Copland, Myers and John Adams, and subscribed by attesting witnesses as to all o£ them. In the progress of the cause, three other documents were filed, the parties consenting that they should be regarded as exhibits. 1. A statement shewing the liabilities of John Adams to the bank of the United States at their office in Richmond, in the month of August 1818, and on the 30th of November 1828. By this statement it appeared that at the first mentioned period the said John Adams was responsible as payer of notes to the amount of 94,000 dollars, and as endorser to the amount of 96,000 dollars; that on the 30th of November 1828 he was responsible as payer to the amount of 88,000 dollars, and as endorser to the amount of 111,000 dollars, the two last mentioned sums being aggregates of principal and interest. 2. A deed of bargain and sale from E. Joseph and others, *trustees of the jewish congregation of Richmond, to John Adams, dated the first of July 1817, conveying the lot whereon the synagogue was erected, for the consideration of 10,156 dollars. 3. A deed of bargain and sale from M. Judah and wife to John Adams, dated the 18th of June 1816, conveying a lot on E. and 19th streets in Richmond, for the consideration of 22,398 dollars.
    The defendants John Enders, Samuel Myers, J. G. Smith, J. Robinson, A. Stevenson and John Adams failed to answer the bill, and it was taken for confessed as to them.
    Various witnesses were examined and their depositions filed in the progress of the cause. In the opinion of this court the testimony proved, clearly and conclusively, that the property in controversy was purchased by John Adams on his own account; that the payments of the purchase money, so far as it was paid before Marx’s assignment to the bank of the United States, were made by the said John Adams; that the improvements on the property were erected by him at his own expense; that he always held the possession and exercised all the rights of ownership, with the knowledge of Richard Adams in his lifetime, and without any manner o£ interference by him; and that Richard Adams not only made no claim to the property himself, but repeatedly recognized the sole and full ownership of John. The evidence in the cause is sufficiently detailed in the opinions of judges Brookenbrough and Brooke, and the president: it is therefore deemed unnecessary to make any farther statement of it here.
    When the cause came on to be heard in the court below, the chancellor declared his opinion, That on the question whether the property in controversy was the property of Richard Adams or of John Adams, the pa-rol evidence was conflicting: That the conveyance from Joseph Marx to Richard Adams ascertained the property thereby conveyed to be the property of Richard and not *of John Adams: That John Adams as executor of Richard Adams had no right to mortgage any part of his testator’s real estate for the payment of his own debts: But that the property in controversy was chargeable with the balance of the purchase money, originally due to Marx and secured to him by the trust deed from Richard Adams to Copland and Myers, but now due to the bank of the United States, the assignee of Marx, the said balance being 3000 dollars with interest from the 23d of June 1818. Therefore he decreed, that upon the plaintiffs, or any of them, paying to the bank of the United States the said balance with interest, the trustees Copland and Myers, and the said bank, should release to the plaintiffs all right, title and claim to the property in controversy; and unless the said balance and interest should be paid in six months, that the marshal should make sale of the said property for cash, and deposit the net proceeds in bank to the credit of the cause: and that the bank of the United States should render an account, before a commissioner of the court, of the rents and profits of the said property since the same had been in its possession.
    From this decree the bank applied by petition to this court for an appeal; which was allowed.
    The cause was argued here by Johnson and Stanard for the appellants, and Robertson and Leigh for the appellees,
    upon the question whether parol evidence was admissible to prove that the property in controversy was purchased and paid for by John Adams, and thereby to raise an implied trust for his benefit? The discussion embraced also the question of fact, whether the evidence in the cause, supposing it admissible, amounted to proof of such purchase and payment by John Adams?
    
      
      He did not sit in the cause, being- related to some of the appellees.
    
    
      
       Lands — Implied Trusts — Parol Evidence to Prove.— Where land is purchased and paid for by one person, and the conveyance is taken to another, the law will imply a trust for the benefit of the former, and such purchase and payment may be proved by parol. Deck v. Tabler, 41 W. Va. 335, 23 S. E. Rep. 722, citing Bank of U. S. v. Carrington, 7 Leigh 566. For this proposition the principal case is also cited in Jarrett v. Johnson. 11 Gratt. 336; Borst v. Nalle, 28 Gratt. 436; Miller v. Blose, 30 Gratt. 751, and note; Sprinkle v. Hayworth, 26 Gratt. 891, 392; Warwick v. Warwick. 31 Gratt. 76; Walraven v. Dock, 2 P. & H. 554. and note; Kane v. O’Conners, 78 Va. 77; Coffman v. Colfman, 79 Va. 507; Woodward v. Sibert, 82 Va. 446; Sinclair v. Sinclair, 79 Va. 42; M’Devitt v. Frantz, 85 Va. 753, 8 S. E. Rep. 642; Gregory v. Peoples, 80 Va. 358; Beecher v. Wilson. 84 Va. 817, 6 S. E. Rep. 209: Steagall v. Steagall, 90 Va. 74. 17 S. E. Rep. 756: Hancock v. Talley, 1 Va. Dec. 447; Hardman v. Orr, 5 W. Va. 73; Pumphry v. Brown, 5 W. Va. 109; Nease v. Capehart, 8 W. Va. 111; Smith v. Patton, 12 W. Va. 553; McGinnis v. Curry, 13 W. Va. 64; Troll v. Carter, 15 W. Va. 581; Hamilton v. Steele, 22 W. Va. 354; Murry v. Sell. 23 W. Va. 480; Smith v. Turley, 32 W. Va. 17, 9 S. E. Rep. 47; Seiler v. Mohn, 37 W. Va. 518, 16 S. E. Rep. 500. In Riggan v. Riggan, 93 Va. 90, 24 S. E. Rep. 920, it Is said, that a trust can be established In personalty, or in the proceeds of realty by parol testimony alone, seems to be well settled. Citing Bank of U. S. v. Carrington, 7 Leigh 566; Phelps v. Seely. 22 Gratt. 573. In Titchenell v. Jackson, 26 W. Va. 468, it is said: “Where this seventh section of the English sta tute of frauds has been enacted, it is held that trusts in land cannot be proven by parol; and where it has not been re-enacted, the decisions on this point have been variant. In Virginia and West Virginia there have been no decisions as to whether the omissions of this section of the English statute of frauds has really made any difference in effect. There have been, however, some ohiter dieta on this point. (Bank of United States v. Carrington et al., 7 Leigh 566; Walraven v. Lock et al., 2 P. & II. 547: Sprinkle et al. v. Hayworth et als., 26 Gratt. 384: Troll v. Carter, 15 W. Va. 580-582.)’
      Conditional Conveyances— Parol Evidence. — On this question the principal case is cited in foot-note to Robertson v. Campbell, 2 Call 421; Snavely v. Pickle, 29 Gratt. 31. See monographic rsofeon “Evidence.”
    
   BROOKENBROUGH, J.

It is a well established principle in England, that if one man purchase an estate in *lands, and do not take the conveyance in his own name, but in that of another, the trust of the legal estate results to him who pays the purchase money. This trust results by the mere operation of law, though the person in whose name the conveyance is taken executes no declaration of trust. Sugden on Vendors, ch. 115, § 2, p. 443; Gascoigne v. Thwing, 2 Vern. 366; Ross v. Norvell, 1 Wash. 16; Boyd v. M’Clean, 1 Johns. Ch. Rep. 586. The proofs however ought to be very clear, if the trust does not arise on the face of the deed itself. Ibid. And the resulting trust may be proved by parol evidence, after the death of the person in whose name the conveyance is taken. Sugden on Vendors, pp. 444-5; Lench v. Lench, 10 Ves. 511.

The 7th section of the english statute of frauds declares that all declarations or creations of trust and confidences of any lands &c. shall be manifested and proved by some writing signed by the party &c. And the 8th section provides, that “where any conveyance shall be made of any lands &c. by which a trust or confidence shall or may arise or result by the implication or construction of law, such trust or confidence shall be of like force and effect as if the statute had not been made.” These clauses are not found in our statute of frauds. If in England the courts have decided that where the conveyance is made to a third person, and not to the purchaser, there is a resulting trust to the man who advances the money, much more ought that decision to be made here, where there is no law directing declarations of trust to be in writing.

In this case it is proved that John Adams opened a treaty with Marx, for the purchase of the lots on his own account; the price and the terms were agreed on between them, a memorandum of the bargain in writing was signed by Marx as vendor, and the said John Adams as vendee; they agreed that the purchase money should be secured by John Adams giving his notes *with Richard Adams as indorser, and by a deed of trust on the property. When the parties met to perfect the bargain, the form of the security was changed. Richard gave the notes, and John was the indorser; the deed was made by Marx to Richard, and he consequently executed the deed of trust. But possession was given to John; he employed the architect to plan the hotel; he borrowed money to purchase materials for carrying on the buildings; he paid the workmen; he caused the erection and completion of the. large and expensive superstructure. All this was known to Richard Adams, and he had a view of the daily progress of the work: he lived to see the house advanced to the second story: he frequently spoke of it as John’s property, and expressed anxiety about his undertaking. John also purchased two other tenements, adjacent to the hotel lots, which were indispensable appendages to the hotel. These facts prove that John Adams was not only the possessor, but the owner and proprietor of the lot in question. Who then paid the purchase money? When the first note was becoming' due, it was deposited in the bank where it was payable; no communication was had with the parties, and it was paid at maturity. There is no direct evidence by whom it was paid; and from the face of the paper itself, a presumption would arise that it was paid by Richard Adams the maker, since he was directly bound for the payment, and the indorser only collaterally bound. But this presumption is liable to be repelled, and is, I think, clearly repelled by the facts which I have enumerated. Accordingly Marx considered that it was paid by John Adams.

The second note arrived at maturity after Richard Adams died. John Adams was one of his executors, and received large funds from the estate; but it does not sufficiently appear that the note was paid out of those funds. It appears, indeed, that at some period *the funds Of the estate and the proper funds of John Adams were mixed together, and John Adams checked-on that mixed fund, as his occasions required. But we know that heavy drafts were made by him on that fund, which as executor he thought he had a right to make, and for purposes which he supposed were to benefit the estate; and I think it is impossible to conclude from the evidence that he had not a sufficiency of his proper funds in bank to pay this note. It is proved by Marx, that John Adams applied for indulgence as to this note, which was not granted, and that the note was paid at maturity. I conclude it was paid by him from his own funds; as well as so much of the third and last note as was paid, that amount having been checked for by him.

I think, then, that this is a case in which the rule as it is understood in England will strictly apply. The purchaser of the land having paid the money, the trust results to him by operation of law, although the conveyance was made to another.

Nor do I think that either the words or spirit of our statute of frauds will exclude parol evidence in a case like this. The act says, “No action shall be brought upon any contract for the sale of lands, or the making any lease thereof for a longer term than one year, unless the promise or agreement &c. or some memorandum or note thereof, shall be in writing.” There is no pretence of anyr contract of sale or lease between Richard Adams and John Adams. The deed shews a sale between Marx and Richard Adams; and John Adams, who is not named in the deed, but who has been in possession ever since the sale, and has laid out large sums of money on the land, asks to be allowed to prove by witnesses, not that there was any contract of sale between Richard and himself, but that Richard holds under that deed merely as his trustee. The 4th sections of the eng-lish statute uses broader terms than ours. It ^forbids an action, “on any contract or sale of lands, or any interest in or concerning them,” without writing. These words are omitted in our act; yet their insertion in the english statute was not deemed sufficient to include declarations of trust, which would have been probable by parol testimony, but for the 7th and 8th sections before mentioned.

Upon the whole matter, I am for reversing the decree, dissolving the injunction, and dismissing the bill.

CARR, J.

The only question in this cause calling for examination is (as it strikes me) whether we can read the parol evidence introduced to prove that the ground on which the Union Hotel stands, was purchased by John Adams in his own right, and paid for with his own money. This, it is contended, we are forbidden to do by the statute of frauds, as the deed for the land was executed to Richard Adams, and recites that he bought the property, and paid the purchase money. In England1 it is settled by many cases that such evidence would be received. Their statute of frauds differs from ours with respect to trusts, in this, that by their 7th section it is enacted that all declarations or creations of trusts &c. of any lands &c. shall be manifested and proved by some writing &c. To which section there is a proviso, that where any conveyance shall be made of lands &c. by which a trust or confidence shall or may arise or result by implication or construction of law &c. such trust &c. shall be of the like force and effect as if the statute had not been made. Whereas, by our statute, the’whole subject is omitted. We have neither the enacting clause, nor the proviso which that clause rendered necessary. How stands the subject then with us? It seems clear that in England it was not supposed that the general declaration of the statute, that no action should be brought upon any contract for the sale of lands &c. unless in writing, would comprehend *cases of trust or confidence in land; and therefore the 7th section was made for that particular purpose: but as it was not meant to include trusts resulting by implication or construction of law, they were specially excluded from the operation of the section by a proviso. The effect of this (as many cases prove) is, that these resulting trusts remain as they were before the statute, and may be raised and proved by parol. This, we cannot doubt, was known to our legislature when, in 1787, they transferred the statute of frauds to our code; and with this knowledge, when we see them leaving out entirely this part of the english statute, can we doubt that they intended to leave this subject of resulting trusts, or at least, trusts by implication and construction of law,as it stood before the act? I think this is the fair conclusion; and it is strengthened by the cases in our books. Ross v. Norvell, 1 Wash. 14; Robertson v. Campbell, 2 Call 421. With respect to resulting trusts in England, chief baron Eyre, in Dyer v. Dyer, 2 Cox’s C. C. 91, says — “The clear result of all the cases without a single exception is, that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser; whether' in one name or several; whether jointly or successively, — results to the man who advances the purchase money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.” It is equally clear that the- facts constituting this resulting trust may be established (in England) by parol evidence. Sugden on Vendors, 417, and the cases cited by him. Boyd v. M’Clean, 1 Johns. Ch. Rep. 582, where all .the cases are reviewed. It is laid down, however, in the same cases, that where the evidence is ^merely parol, although it is clearly admissible, it will be received with great caution; and this I think a very proper qualification of the rule. These considerations have led me to conclude, that in the case before us, the parol proofs going to establish that the purchase was made and the purchase money paid by John Adams, ought to be received. Do they clearly establish these facts? In my mind, they fix them beyond the reach of doubt.

I will not detail the evidence; it seems to me too plain. I will therefore only add, that I think the decree should be reversed, the injunction dissolved and the bill dismissed.

BROOKE, J.

The parol evidence in the record proves that John Adams bargained for and purchased the lot on which the Union Hotel stands, of Marx the vendor; that the contract was reduced to writing in the name of John Adams; that he took possession of the tot, and treated it as his property, by erecting the hotel on-it at great expense, with the daily knowledge of Richard Adams, who made no claim to it, and at all times spoke of it as the property of his brother John, even on his death bed; that John Adams paid the purchase money, except a part of the last instalment, paid by the bank of the United States; that the hotel was erected in part on a lot confessedly the property of John Adams, without any claim to it by Richard Adams, who lived near it and saw it every day; that the general understanding was, that it was the property of John Adams: and the only opposing testimony is that the deed from Marx the vendor 'was made to Richard Adams, and that he was the maker of the notes for the payment of the three instal-ments of the purchase money, without the slightest evidence that he paid a cent of it. Why the deed was made to Richard Adams, and the notes made by him and indorsed by John Adams, does not appear, except *that the witness Marx says it was by the desire of John Adams; and the only conjecture is, that it was to indemnify Richard Adams for any money he might advance in payment of the purchase money; to secure which Richard Adams gave a deed of trust to the vendor Marx. Upon this state of the facts; I think the only question is whether parol evidence was admissible to prove them. That such evidence to prove facts that lay the foundation for a resulting trust, or trust by implication of law, was admissible by the english cases, I think cannot be doubted, though there has been some diversity in them. In Sugden on Vendors, p. 443, it is laid down, that although the person in whose name the conveyance is taken executes no declaration of trust, yet a trust will result for the person who paid the purchase money, by operation of law; this species of trust being expressly excepted out of the statute of frauds (see the cases there cited); and that such trusts may be asserted after the death of the nominal purchaser, as in the case before us. He cites the case of Lench v. Lench, 10 Ves. 511. But, for the english authorities on this point, I refer to the case of Boyd v. M’Clean,-1 Johns. Ch. Rep. 582. But it is insisted that our statute of frauds differs from the statute 29 Charles, and that resulting trusts and trusts by implication of law are, by construction, within its provisions. If so, it would cut up a valuable portion of equity jurisdiction, and promote fraud instead of preventing it. How does our statute in this respect differ from the english statute? The 7th section of the statute of Charles enacts, that all declarations or creations of trusts &c. of any lands &c. shall be manifested and proved by, some writing: to which there is a proviso, that where any conveyance shall be made of lands &c. by which a trust or confidence may arise or result by implication or construction of law &c. such trusts &c. shall be of the like force and effect as if this statute had been made; thereby limiting the ^operation of the 7th section to declarations of trusts, and excluding resulting trusts and trusts by implication of law. Our statute enacts, that no action shall be brought &c. or upon any contract for the sale of land &c. unless the promise or agreement upon which such action shall be brought &c. shall be in writing &c. — not saying a word in its whole context as to declarations of trusts, or trusts resulting by implication of law, and in this respect differing from the english statute, that it does not require even declarations of trusts to be in writing, as is required by the 7th section of that statute, but leaves the law as to these trusts and trusts by implication, as it stood before; so that even parol declarations of trusts, inhibited by the 7th section of the english statute, are exposed by our statute to parol testimony, — more dangerous than parol evidence of facts from which to infer a' resulting trust, because more liable to be contradictory.

On the whole, I think the decree must be reversed, the injunction dissolved, and the bill dismissed.

TUCKER, P.

The point upon which this case turns is the right of property in the Union Hotel with the appurtenances. By the complainants it is contended that that property belonged to Richard Adams their testator, that it was conveyed by him to trustees to secure the payment of - the purchase money to Marx, and that they are entitled to redeem it by paying up the balance of the purchase money which the bank had paid to Marx, andón payment of which they had received an assignment of the deed of trust. The bank, on the other hand, claiming under a mortgage of John Adams, insists that the property which was originally the property of Marx, was purchased by John Adams of Marx, and that he and not Richard Adams was the true and real owner of the estate. The evidence in the case, if not inadmissible, establishes this fact, I think, incontrovertibly. *1 cannot see any just foundation for the opinion that the parol evidence was so conflictnig- as to compel the court to look to the deed as containing the real transaction. The testimony proves beyond question, that John Adams purchased the lots from Marx for 25,000 dollars; that the written agreement was entered into between them; that Richard Adams (though a resident in Richmond) had no agency or part in the purchase; that he was not known in the transaction, and that the treaty was altogether on the part of John Adams. It is true that for some reason about which we must be compelled to speculate, the deed was, at the request of John Adams, executed to his brother, and his brother executed a contemporaneous deed of trust, and gave his negotiable notes, in which he appears as principal and John Adams only as indorser. But the testimony abundantly shews that notwithstanding this form of the transaction, the substance of it was a purchase by John Adams for himself, and the conveyance to his brother was probably for the purpose of indemnity, in the event of his being compelled to pay the purchase money. John Adams certainly paid the first instalment, and out of his own funds, whether borrowed of the bank or of his brother, or obtained elsewhere. Why should this payment have been made by him, rather than by his more wealthy brother, who appeared as principal in the negotiable notes? There could be no motive for his making it, if his brother was the purchaser and real owner of the estate. But ir he was the purchaser and owner, it was his duty and interest to pay off the notes at maturity, and relieve the property from the incumbrance. He does so accordingly : he takes possession of the premises, he proceeds to purchase two other lots, his title to which is undeniable, and he goes on to erect improvements upon the whole of the lots, inseparably connected with each other. In doing this, he alone is seen in treaty with the builder, he alone plans and executes, *and, as far as we can see, he alone meets all the heavy responsibilities of this most extensive engagement. All this is under the immediate eye of his brother, before whose death considerable progress was made in the splendid establishment in question, without any claim of property or exercise of ownership on his part, and without any act from which it could be inferred that he had any other interest in the building than that which was dictated by fraternal affection. Pulling states that he frequently heard from both of the parties that the property was John’s, and on his death bed Richard Adams expressed a wish to see the Union Hotel finished, that he might see his brother enjoy it; having expressed to another witness his fears “that if John Adams died in less than seven years, it would ruin him.” Such a declaration is incompatible with the notion that he was himself the owner of the property. It is incompatible with the notion that John Adams was his agent; buying for him, contracting for him, and involving him ; all of which must have been the case, if he had been the owner. We must remember that if we are, from the deed, to take him to be the owner, he was owner in severalty, and not in common with John Adams, and all the responsibility was on him. Yet he pretends to no interference; he asserts no claim of property, he neither contracts nor supervises, while thousands are expended in this large adventure; and instead of fears for his own loss, he is apprehensive only of the ruin of his brother. After his death, the conduct of all the parties interested is equally incompatible with any notion on their part, of the title of Richard Adams. The building proceeds under their eyes, it is completed and rented out by one who is now said to have had no title to it, and part of them are privy to the mortgage of the whole subject by John Adams, to secure immense sums which he had borrowed of the bank and expended in this costly undertaking. I do not deny that Richard Adams probably *made him large advances in his lifetime, and that he occasionally availed himself of the funds of the estate in his hands as executor, to meet his heavy engagements. Such advances are proved to have been made; whether as a loan or gift, would seem to be doubtful according to the testimony of Pulling: but those advances, if meant as a loan, being ex post facto, could not make the property his, unless by agreement ; nor do they form even a lien on the lots, as such lien does not appear to have been contracted for. Upon the whole, therefore, I am well satisfied that John Adams, was not only the purchaser of the lots from Marx, but that the deed to Richard Adams, was merely executed as matter of arrangement, by which he was to be secured against his responsibility for the purchase money, while John Adams was the undisputed owner of the property. Under this view of the case, it is not only intelligible why John Adams should have made the first-payment in the life of his brother, and should have encountered all the cares, and trouble, and anxieties, and expenses attendant upon so extensive an improvement, but we are furnished with a ground upon which to rest the presumption that the subsequent instalments of the purchase money and the cost of the building were paid by him out of his own funds — borrowed, if you please, either of the bank or of his brother, or used perhaps, to some unknown extent, out of the executorial fund. But the fact that these funds were borrowed of his brother, or even withdrawn from the estate, cannot make the property his, or even constitute a lien upon it, as none was contracted for. We cannot follow the money thus employed, into the real estate here. Though money is sometimes followed into land, where trust funds have been misapplied, it is only in a clear case, and -where the amount can be ascertained. And moreover where only part of the consideration is paid out of the funds, there can be no resulting trust; and where a payment or advance of *money is after the purchase has been completed, no trust will be raised by it, and it can give no title. Botsford v. Burr, 2 Johns. Ch. Rep., 405; 1 Hov. on Frauds, 471.

Believing, then, that the evidence clearly establishes John Adams’s title to the property, if we are not excluded from' the inquiry by the statute of frauds, let us next inquire whether under that statute it be incompetent to establish this trust by parol evidence: and in every point of view in which I can consider it, I am satisfied it is not. The statute of frauds in England is more extensive than our own, as it contains in the 7th section a provision that all declarations of trust must be in writing, except such trusts as “arise or result by the implication or construction of law.” Before that statute, declarations of trust might have been made by parol; and as our statute contains no provision on the subject, it is possible that a verbal declaration of trust, if clearly proved, might be sustained. Thus, I imagine, it has not unfrequently occurred in Virginia that husband and wife have conveyed to a third person, with intent that he should reconvey to the husband, but without any written declaration of trust. A case of this kind has recently occurred, and is under advisement. Yet I have never heard it questioned that the trust might be sustained, though not in writing, and though it be not a resulting trust. So with respect to deeds absolute on their face, when the real transaction was a mortgage. Whatever may be the doubts elsewhere, it has been with us long established that the equity of redemption may be sustained by parol evidence, and that a deed absolute on its face may by such evidence be turned into a mortgage. Ross v. Norvell, 1 Wash. 14; Robertson v. Campbell, 2 Call 421; Conway v. Alexander, 7 Cranch 218. In England, it has been admitted that a deed though absolute will be considered a mortgage, where the trust is confessed by the mortgagee. 1 Pow. *on Mort. 145, a. And so where there was an omission to e.xecute the defeasance. 3 Atk. 389. And the intent of the parties may be explained to have been a mortgage, though the deed be absolute. 2 Eonb. 267. Indeed I do not perceive how this matter could be doubted in England; for as the mortgagee is trustee for the mortgagor only by construction of the courts of equity, the case seems to be expressly within the proviso which excludes trusts by construction of law from the operation of the statute. Be this as it may, — I presume it is, with us, competent to prove by parol that an absolute deed was executed upon the secret trust that the grantor should be entitled to redeem.

If this principle be correct, I apprehend it is decisive of this case. For the conveyance to Richard by the direction of John, for the security of- money, constituted the transaction a mortgage in effect. And though the deed is absolute on its face, yet the defeasance may be proved by parol; and I have already said that I think it is so proved.

We are brought to a like conclusion, indeed, if we consider the case in reference to other established principles. Thus if A. purchases an estate with his money, and takes a deed in the name of B. a trust results to A. and such resulting trust may be proved by parol. Botsford v. Burr, 2 Johns. Ch. Rep. 405; Boyd v. M’Clean, 1 Johns. Ch. Rep. 582; Willis v. Willis, 2 Atk. 71; 2 Mad. 97; Rider v. Kidder, 10 Ves. 360; Gascoigne v. Thwing, 1 Vern. 366; Sugd. 443, 444, and the cases there cited. And this is in conformity with the course of decision in the analogous case of trust moneys, which may be followed into land when they are clearly shewn to have been employed in the purchase of it; and whatever doubt may have been formerly entertained as to the admissibility of parol testimony in such cases, it seems now settled that a claim to land can be supported in such case by parol evidence, on *the ground that resulting trust, or trusts arising by operation of law, are not within the statute. Hov. on Frauds 471; Lench v. Lench, 10 Ves. 517. Indeed if no trust could be good under the statute but those which were declared in writing, there would be of course an end to implied trusts; and the innumerable instances in which equity, for the furtherance of justice to a party, sets up a trust in his favour, would at once be obliterated from its system.

Now in this case the defence set up is precisely that in the cases cited above. It is alleged that John Adams purchased and paid for the estate, but took the deed in his brother’s name. If so, then there is a clear resulting trust; and as resulting trusts are not within the statute, parol evidence is admissible to establish the facts out of which the trust arises.

There is one other view of the subject which I will suggest. It is, that Richard Adams (unless he paid the purchase money, or it was paid out of his funds) had no title, either legal or equitable; not the legal title, for that was in the trustees; nor the equitable, for, having paid no money and made no contract, he had no equity. The bill therefore cannot be sustained in behalf of his representatives.

I am of opinion to reverse the decree, dissolve the injunction, and dismiss the bill.

Decree reversed, injunction dissolved, and bill dismissed.  