
    *Harris’ Ex’ors v. Barnett & als.
    October Term, 1846,
    Richmond.
    (Absent Cabelx,, J».)
    Purchase of Land — Paro! Trust — Sufficiency of Proof. — ■ Bill to set np a parol trust attending the purchase of land. The proof shews the Vendor understood and intended the purchase to be upon the trust; but the purchase being made by an agent, the proof, though it shews the agent understood and intended the purchase to be upon the trust, does not shew the vendee so intended. Huno. The proof is insufficient to establish tile trust.
    In 1832, Nathan J. Barnett' and George Eggleston and Eliza his wife filed their bill in the Superior Court of Albemarle county, against the executors of John Harris deceased, in which they charged: That in 1811 Abraham Martin sued out an execution against Nathan Barnett, the father of the plaintiffs Nathan and Eliza, which was levied on his property. That he gave a forthcoming bond; and to indemnify his sureties in that bond, he executed, a deed of trust on a tract of land on which he lived, and some personal property. That it became necessary to sell the land and some of the personal property, in order to secure the sureties; and that Murphy, Brown & Co. became the purchasers of the land at the price of 1200 dollars, and also of two negroes, who were advanced in years, at 200 dollars. That John Harris, a very wealthy and childless uncle of the plaintiffs Nathan and Eliza, applied to Robert Rives, one of the firm of Murphy, Brown & Co., to purchase the land for the- benefit of the plaintiffs, who were then of very tender years; and that Rives for his firm, consented that Harris might take the land, upon condition that he would pay to Murphy, Brown & Co. 1000 dollars; and after he should be reimbursed that sum from the rents of the land or otherwise, that he should then give the same to the plaintiffs. That another condition *of this agreement was, that Nathan Barnett the father, was to pay to Murphy, Brown & Co. 200 dollars ; and that Elizabeth Harris, the grandmother of the plaintiffs, was to take the two old negroes purchased by them off their hands, at the price they had given.
    The bill then charges that John Harris agreed to these terms, and the land was conveyed to him; and that "Elizabeth Harris took the two negroes, and paid the two hundred dollars to Murphy, Brown & Co. That Harris took possession of the land in 1811, and rented it out until 1821, when he sold it to Tjeé W.' Harris: and that the rents he received amounted to considerably more than the interest on 1000 dollars; so as not to leave much of that sum unpaid at the time of the sale. The plaintiffs then pray for an account of rents and profits of the land whilst in the possession of John Harris, and of the amount received by him for the land; and also of what is due them after satisfying to the said John Harris the sum of 1000 dollars paid by him to Murphy, Brown & Co. for the land.
    The executor of John Harris answered the bill, disclaiming all knowledge of the facts in relation to the purchase of the land, and calling for proof.
    From the evidence, it appears that Barnett’s property was sold and purchased by Murphy, Brown & Co., as stated in the bill. Mr. Robert Rives, who was a member of the firm of Murphy, Brown & Co., was examined as a witness. He says: The land bought by Murphy, Brown & Co. was worth double the sum it was bought at; and they w;ere offered considerably more than they gave, But at the earnest request of Nathan Barnett, who had made arrangements with Mr. Harris to pay Murphy, Brown & Co. 1000 dollars on the land being conveyed to him, Murphy, Brown & Co. consented that it should be done on his paying them the 1000 dollars; which, with other arrangements then entered into with Nathan Barnett, were satisfactory to Murphy, Brown *& Co. That he never would have consented to relinquish to Mr. Harris the purchase, for one thousand dollars, which had cost 1200 dollars, and which could readily have been sold for the double of that sum, but for the perfect conviction it was intended by him for the benefit of his niece, the wife of Nathan Barnett. But the witness had no communication whatever with Harris on this subject: every thing in relation to this transaction was through Barnett. In conformity to the arrangement with Barnett, the land was conveyed to Mr. Harris, and he paid the 1000 dollars.
    It also appeared that Mrs. Elizabeth Harris was induced to take the two old negroes who had been purchased by Murphy, Brown & Co., for the purpose of effecting the transfer of the purchase of the land from them to John Harris for the benefit of the plaintiffs. But this was done at the suggestion of Barnett.
    After the land was conveyed to John Harris he rented it to Barnett, and stated to the person" who acted as his agent in renting the land, that it would be best to make Barnett pay as high rent as possible, as it would be for the benefit of the children ; as all he wanted was to get back his 1000 dollars with its accruing interest. He also enquired of another person whether the land would do to divide, so as to make
    two settlements for the children of Nathan Barnett, and being told it would not, he replied he would sell the land and give them the money, with which they might do better. In 1821, John Harris sold the land to Eee W. Harris. Pending the negotiation, he observed that if he intended to give the land to the heirs of Polly Barnett, (the wife of Nathan Barnett,) it would be best for their interest that it should be sold, as the money would be much more easily divided, and would suit the children better. And another witness states, that after the sale of the land, Mr. Rives, having en-quired of him whether Harris intended the land for Barnett’s children, and having observed that had not the understanding been so he would not have *taken any thing like the price he had taken, the witness mentioned this conversation of Mr. Rives’ to John Harris, and he replied, the money would do Barnett’s children more good he thought than the land; and asked the witness if he did not think so.
    During the minority of the plaintiff Nathan Barnett, John Harris advanced him the sum of 850 dollars; and by his will he gave to the said Nathan and the plaintiff Eliza 200 dollars to be divided between them.
    The Court having directed an account to be taken of the amount due from John Harris for the land, charging him with the rents whilst he held it, and the price at which it was sold, with interest thereon, and crediting him with 100 dollars, with its interest, and the amount advanced to the plaintiff Nathan, and the taxes on the land; and the commissioner having returned a report, the cause came on to be finally heard in May 1839, when the Court decreed in favour of the plaintiffs for 6435 dollars 12 cents, the amount reported due by one .of the commissioner’s statements, with interest on 4178 dollars 65 cents from the date of the decree till paid. From this decree the executor of John Harris applied to this Court for an appeal, which was allowed.
    Garland and Johnson, for the appellants.
    Eeigh, for the appellees.
    
      
      The principal case is cited in Vangulder v. Hoffman, 23 W. Va. 39, and said to have no application to that case.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the evidence in the cause is insufficient to establish that the purchase by John Harris of the tract of land in the proceedings mentioned, was coupled with any trust for the benefit of the complainants Nathan J. Barnett and Eliza Eggleston. The Court, therefore, without considering what would have been the effect of the parol undertaking and agreement of the said John Harris, alleged in the bill of the complainants, if the same had been proved, is of opinion that so much of the said decree of the said Circuit Court *as gives relief to the complainants in relation to the rents of said land, and the proceeds of the sale thereof by the said Harris, and so much thereof as gives costs to the complainants is erroneous.

Decree reversed with costs. ’  