
    [No. 3,941.]
    YOUNG AMERICA ENGINE COMPANY No. 6 v. CITY OF SACRAMENTO.
    Paboii Evidence nr Case ob Deed. In an action by a cestui que trust against a trustee to enforce the trust, by compelling a conveyance of the legal title to the eestui que trust, parol evidence, in the absence of fraud or mistake in making the deed, -will not he received on behalf of the trustee, to contradict the language of the deed, and show that the trustee named in the deed, and not the cestui que trust, was the beneficiary.
    Appeal from the District Court~of' the Sixth Judicial District, County of Sacramento.
    This was an action to require the defendant to convey the legal title to a lot in the city of Sacramento to the plaintiff. The plaintiff was organized as a corporation January 31st, 1856, under Chapter VIII of the Act of April 29th, 1850, entitled “An Act concerning corporations.” About one year thereafter the premises in controversy were conveyed by one Hunter to Robinson, Perry and Folger, who were the trustees of the plaintiff. In November, 1857, the , plaintiff’s trustees, as such, conveyed the property to the defendant’s predecessor, the Mayor and the Common Council of the city of Sacramento, by a deed in which the habendum is as follows: “To have and to hold all and singular the above mentioned and described premises, together with appurtenances, unto the said party of the second part, and to their successors in office as trustees of said Young America Engine No. 6, and for the use and benefit of said company forever.” At the trial, the plaintiff having introduced the deeds above mentioned, the defendant offered to prove that the original purchase money ($1,000) was subscribed by citizens other than members of the plaintiff, for the purpose of buying a lot on which to erect a house for Engine Company No. 6, the City Council agreeing to build the house; that after the lot had been purchased with this understanding, the city built an engine-house thereon at a cost of $4,000; that the house was built by the city, and occupied by the plaintiff with the understanding and agreement that it belonged to the city for the use of its fire department, and not for the separate use of the plaintiff; that no member of plaintiff had paid any part of the purchase money; that a change having been made in the organization of the fire department of the city, the plaintiff was about to disincorporate and divide its property among its members and so divert the same from the uses of the fire-department. The plaintiff objected to the evidence and the Court excluded it on the ground that, no mistake or fraud about the execution of the deeds having been alleged, the defendant could not be allowed by parol evidence to vary the terms of the trust .created. The defendant excepted to the ruling; and, judgment having been rendered for the plaintiff, the defendant appealed.
    
      MoKune & Welly, for the Appellant.
    The evidence offered went to the character of the original investment, to the character of the deed from Hunter to Eobinson et al.
    
    The consideration is the principal thing to be considered in the investigations concerning trusts. (Barry v. Shelly, 4 Hey. Tenn. 229, 231.) And the trust need not be raised in writing. (Second U. Soc. v. Woodbury, 14 Me. 281; Steere v. Steere, 5 J. C. 18; Harrison v. McMenomy, 2 Edw. Ch. 18; Elliott v. Armstrong, 2 Blackf. 198.) But it may be by parol merely. (De Peyster v. Gould, 2 Greene, Ch. N. J. 474; Dismukes y. Terry, Walker, 197; 4 Blackf. 539; 2 Blackf. 441; Letcher v. Letcher, 4 J. J. Marsh, 590; Basford v. Burr, 2 J. C. 405.) And parol evidence may be given to contradict a deed, (Boyd v. McLane, 1 J. C. 582; 2 J. C. 405.)
    
    
      ■ The transaction out of which a trust results may be given by parol, and thus establish the trust. (Livermore v. Aldrich, 5 Cush. 435; Boyd v. McLane, 1 Johns. Ch. 582; Scoby v. Blanchard, 3 N. H. 170; Prichard v. Brown, 4 N. H. 397.) And the Statute of Frauds does not effect trusts arising by operation of law. (Id., and Ross v. Hageman, 2 Edw. Ch. 373; Smith v. Sackett, 5 Gilman, 544; Hoxie v. Carr, 1 Sumner, 187.)
    A party setting up a resulting trust may prove by parol the actual payment of the purchase money by himself, or on his behalf, even though the deed state it to have been paid by the grantee in the conveyance. (DePeyster v. Gould, 2 Greene, Ch. 474; Peabody v. Tarbell, 2 Cush. 232; Barron v. Barron, 24 Vt. 375; Malin v. Malin, 1 Wend. 625; Harder v. Harder, 2 Sanford’s Ch., 17; Pierce v. McKeehan, 3 Barr, 136.)
    In this case- plaintiff paid no consideration in or about the said transaction, and equity will not in such case interfere, but will leave the parties to their legal remedies, the transaction being still executory.
    
      Bobert G. Olarlc, for ¡Respondent.
    It having been admitted on the trial, that Ab. C. Hunter was once the owner in fee of the property, the only evidence on the part of the plaintiff was a deed from him to ¡Robinson, Perry and Folger, and a deed from them to the Mayor and Common Council of the city of Sacramento.
    The habendum in the last mentioned deed, is in these words: “To have and to hold, all and singular, the above mentioned and described premises, together with appurtenances, unto the said party of the second part, and to their successors in office, as trustees of said Young America Engine Company No. 6, and for the use and benefit of said company forever.”
    Without any allegation of fraud or mistake in the execution of said deed, or in the acceptance of the trust therein created, the defendant offered to prove by parol, certain facts claimed by it to be sufficient to destroy the trust estate.
   By the Court:

1. The trust and the beneficiary were expressly declared on the face of the deeds—from Hunter to Robinson and others, and from the latter to the defendant—and parol evidence will not be allowed in such case upon the part of the trustee, the defendant here, to show that the trustee, and not the cestui que trust named in the deed, was the beneficiary.

2. No point is made as to the form of the decree, and we will not consider it.

Judgment affirmed. Remittitur forthwith.  