
    Jackson, ex dem. Benson, against Matsdorf and another.
    NEW-YORK,
    May, 1814.
    B- executed e. deedofafarm, in 1766, to K.0 daughter of A., “,^or ti!e con~ szderatzon of 112pounds re* The deed was j;°ere(f\oyne" l>ut remained sion of A., until wardTsiOTep* titionsly taken away by K. and her husband; executed anóther deed for the same land to A. At the time of the deed, A. took possession of the premises, and continued ill possession, using and claiming them as his own, from 1766 to the time of his death, about the year 1802. K. and her second husband, in 1786, executed a quitclaim deed for the same premises to B., for the consideration of 112 pounds.
    In an action of ejectment, brought in 18]2, by B. claiming under K. against a person claiming under A., it was held that the taking the deed in¡ the name of K. was not an advancement to her, by A.; but was a trust for her father who paid the consideration money.
    And being a resulting trust, it was not within the statute of frauds, but might be proved by parol. It not being intended as an advancement, there was not a valid delivery of the deed to the trustee ; and A.’s title became complete by length of possession.
    But admitting a delivery of the deed so as to vest the legal estate in K., yet B. could not avail himself of the deed from K, to B. in 1786, B. having full knowledge, at the time, of the trust to A. And if that deed was not absolutely void, the person claiming under it was to be deemed a trustee for A. the real owner.
    The lapse of time, in this case, was sufficient to warrant the presumption of a conveyance by II., the trustee, to A. the cestuy que trust.
    
    The second deed fromB. to A., with -warranty, was sufficient to pass a title subsequently acquired by the grantor.
    And the possession of A. being adverse, at the time of the deed from K. to B. in 1786, that deed was inoperative and void.
    THIS was an action of ejectment for a farm in Pamlings, in . _ r the county of Dutchess. i he cause was tried at the Dutchess circuit in September, 1812, before Mr. Justice Yates.
    
    At the trial, the plaintiff read in evidence a deed, dated the 7 r e 7 8th December, 1764, from Matthias Marsh and William Marsh to Benjamin Benson, for the premises in question, for the considerationof 112 pounds, with the usual covenants, and warranty; a deed, dated 9th June, 1766, from Benjamin Benson to Keziah Benson, expressed to be for for the consideration of 112 pounds received from Ambrose Benson; also a quitclaim deed from Jnines Morehouse and Keziah, his wife, to Beniamin Benson, for ° 7 the same premises, dated 3d November, 1Í86, for the consideralion of 112 pounds. This deed was not acknowledged by the wife of Morehouse. The execution of the deeds was admitted; foy defendants’ counsel, but not the delivery of the deed from Benjamin Benson to Keziah Benson. Many witnesses were examined, and a great mass of evidence taken at the trial, and detailed in the case,- the whole of which it is not thought necessary to state here: the following are the material facts in the case.
    
      William Payne, a witness for the plaintiff
    testified, that after Benjamin Benson purchased the'premises in question, of M. and W. Marsh, he lived on the farm until he and Ambrose Benson exchanged farms, when Ambrose entered into possession of the premises. Keziah Benson, who was the daughter of Ambrose, was under age, when her father took possession of the farm, and lived in his family. The father sometimes called the farm Keziah’s land, and after her marriage with Morehouse, he called it More-house’s land, and sometimes Keziah’s. And when disputes- arose in the family, he frequently said, he would send for Morehouse "to come and take the land, and that Morehouse should have it. Mary Matsdorf, a daughter also of Ambrose Benson, lived with her father. She lived with her first husband, Clear, a short lime, in Connecticut, but during most of the time resided in her father’s family. She and her mother chiefly managed the business. Ambrose Benson died 10 or 12 years ago, and Benjamin died about two or three years since. The witness further stated, that he had heard the declarations of Ambrose Benson above mentioned, at different times, for many years, and towards the close of his life; and that since the sale back to Benjamin Benson, he heard Benjamin Benson say that he had purchased the land. That B» Benson called him to witness Ms forbidding Mary Matsdorf building on the farm. She was then erecting a building of stone in addition to the house. Ambrose Benson was present, and heard Benjamin forbid her building, and she told him to go away and mind his own business, .and not interrupt her. Ambrose Benson said nothing; nor did Mary Matsdorf say she had any claim to the land. The witness heard Ambrose Benson say that Benjamin should have the land, hut without assigning any reason.
    
      John Payne, a witness for the defendants,
    testified, that after the exchange of farms between Benjamin and Ambrose, the-latter took possession of the farm in question, and continued in possession until his death, which was about 12 years ago. His daughter Mary lived with him, and since his death has been in possession, except when put out by a former action of ejectment. Soon after the deeds were executed, about 40 years ago, Benjamin Benson told the witness that he and Ambrose had exchanged farms, and that for particular reasons, Ambrose did not choose to take the deeds in his own name. The deeds for the lands in Connecticut were in the name of Mary and Hannah, his daughters, and the deed for the lands in Neiu-York were to Keziah. Ambrose was under some difficulties; and the deeds were not recorded, as Ambrose did not know but that he n^ht wish to take them up and have others given for different lands, in his own name.
    After Mary was married, Benjamin Benson said that Ambrose had left his chest, containing the deeds, in the house of Benjamin Benson, as he did not know but some of the family might get hold of them. When Benjamin Benson was absent from home, and his wife sick, Mary, and her husband, Patrick Clear, and Keziah, went to his house, took the chest, carried it into the woods, and there broke it open and took out the deeds. Benjamin Benson, on his return home, being informed of what had been done with the chest, told it to Ambrose, and they went to New Milford, and there new deeds were made to Ambrose; but how they were made out, whether separately or not, the witness did not know. It was intended to have them recorded, but Clear had been to the clerk and had got the other deeds recorded first. The witness said the reason why the deeds were not taken in the name of Ambrose was on account of a bond which Ambrose feared might be prosecuted against him. That Ambrose said he did not own any of the children, except Mary, Hannah and Keziah, who should have his property, but that the others should have none.
    Another witness, J. Hoag, also testified that Ambrose used the premises as his own until his death, about 10 or 12 years ago; that since his death Mary had been in possession, except when lurried out by a former action of ejectment. Benjamin Benson told to the witness at different times, that Ambrose was in trouble, and that the deeds were given to his daughters, so that the lands ,'hould not go to pay the bond; that he and Ambrose had exchanged lands, and after the deeds were given, they were put into a chest, which was carried.to Benjamin Benson’s house to be kept, and the witness understood that if Ambrose got clear of lilis difficulty about the bond, the deeds were to be taken up and new deeds were to be given to Ambrose,. After the deeds were-taken away by Mary, her husband and Hannah, as before stated, .Benjamin and Ambrose went to Connecticut, and there new deeds were executed to Ambrose; but Clear had got the other deeds recorded. The deeds were separate; the one for lands in Connecticut was to Mary and Hannah, and the one for lands in this state was to Keziah. The first conversation between the witness and B. Benson was before the deed from Morehouse to him, and another conversation was since and before the death of Ambrose, and the story told bv B. Benson, at both times, was the same. The witness never lik'd Benjamin Benson (¿aim the lands until since the death of Ambrose. A few years before his death, Ambrose Benson desired the witness to write his will, and said he wished to give the property to Mary and her children, and that Benjamin Benson might try to get it from them.
    The counsel for the plaintiff objected to any evidence of the declarations of Ambrose Benson, but the judge overruled the objection.
    Another witness testified to conversations with Benjamin Benson, in which he stated the same facts about the deeds, as above stated, and said he kept them for Ambrose.
    
    
      James Morehouse, who was called by the defendants,
    said that after he married Keziah Benson, her father, Ambrose, told him he had given her a deed, but it was not intended that she should have it, and that he meant the lands should go to Mary and her children. The declarations of Ambrose Benson were objected to, but the evidence ivas admitted by the judge. The witness further testified, that after he was informed there was a deed to his wife, he inquired of his father about it, who told him the land was the property of the state, and never could be recovered. The witness never made any claim for the property, and had given up the idea of any claim, thinking he might look to Benjamin Benson. About 7 or 8 years after his marriage with Keziah, Benjamin Benson told him the deed to her was a fraud, that it never was intended for her, that the title from M. <§• W. Marsh would fail, and that the land belonged to the state ; that as the deed Avas Avith covenants, he Avished to have it back and to be discharged; that the deed had never been delivered, but had been taken away from his house. The witness never consulted Avith Ambrose Benson about giving the quitclaim to Benjamin Benson. The Avitness said he never claimed or expected to get the land. But it appeared that he had said, on a former trial, that lie had consulted with Ambrose Benson, before he gave the quitclaim deed. The witness, however, said his recollection was not clear; that he thought his wife sent to Ambrose Benson and his family to ask about it, and they sent back word they might do as they pleased about selling to B. Benson.
    
    A verdict was taken by consent, for the plaintiff for six eighths of the premises, subject to the opinion of the court on a case.
    
      J. Tallmadge and P. Ruggles, for the plaintiff,
    contended, 1. That the evidence of the declarations of Ambrose Benson, in hostility to the title of the lessors, was inadmissible; and that the testimony of James Morehouse ought not to have been received.
    Though in favour of the possession, all things will be presumed to be regularly transacted; yet when, as in this case, there is evidence of an intention to the contrary, there can be no ground for the presumption.
    
    This was an advancement to Kesiah, the daughter, not a trust for the father. Where a father purchases land in the name of his son, this is considered as an advancement for the son, and not a trust; and it is laid down to be clearly so, where the child in whose name the deed is taken has not already been advanced. It may be said that a resulting trust may be proved by parol. So, also, may it be rebutted by parol; and the evidence clearly shows that Ambrose Benson intended this land as an advancement to his daughter. [Here the counsel discussed the facts in the case.]
    
      Emott, contra,
    contended that there had not been such a delivery of the deed under which the lessors claim as would transfer a title. But admitting, even, that there was a delivery of the deed, so as to make it a valid conveyance, yet as the consideration money was paid by Ambrose Benson, there was a re-suiting trust to him. The deed not only states the fact, but all the witnesses prove that Ambrose Benson paid the money for the land. This being a resulting trust, it is not within the statute of frauds, and parol evidence is admissible to show the trust.
    
    Again, here was an uninterrupted possession for near 40 years, by Ambrose Benson, the supposed cestui/ que trust. Alter such a lapse of time, the law will presume a conveyance to him from the trustee.
    It is said, that this was an advancement to Keziak Benson, and not a trust for her father, for the proof of a trust is rebutted by the plaintiff’s evidence. But the facts in the case do not support the position that this was an advancement.
    
      
      
        Burr. Rep. 1075.
    
    
      
      1 Ch. Cases, 27. 296. 2 Ch. Cas. 231. 2 Freem. Rep. 252. 1 P. Wms. 608. 2 Vern 19.
    
    
      
       1 Johns. Cas. 153. 3 Johns. Rep. 216-221.
    
   Thompson, Ch. J.

delivered the opinion of the court. It is a well settled ru]^ of law, that if A. buys land and takes a conveyance in the name of B., it is a resulting trust for him who paid the purchase-mopey, raised by implication of law, and, therefore, not within the statute of frauds. The defendants in this case claim under Ambrose Benson, who, it is admitted, paid the consideration money; but the deed of the 9th of June, 1766, was taken in the name of his daughter Keziak, under whom the lessor of the plaintiff claims, by deed, dated November 3, 1786.

It is a question which has often been agitated in chancery, whether, when a parent purchases land in the name of his child, it shall be deemed a trust for the father, or an advancement for the child. When the child is under age, it has generally beep considered an advancement; though Lord Hardwicke, in the ease of Stileman v. Ashdown, (2 Atk. 479.) said he thought the cases on that subject had gone full far enough. But no case will be found, where a purchase so made has been held an advancement, when it expressly appears to have been the intention of the parent that it should not be considered as such, as it does in the case before us. It is in proof, derived from the confessions of the lessor himself, who was the grantor, that the deed was given to the daughter for the purpose of avoiding some expected difficulties, and with an understanding that when Ambrose Benson should get rid of those difficulties, the deed was to be taken up and another given to Ambrose himself. This, doubtless, was the reason why the deed remained in the possession, or under the control, of Ambrose, until fraudulently taken away by Keziak and others. No objection was made to this evidence, nor indeed could any be made; for it not only appears on the face of the deed to be a resulting trust, but such a trust, not being within the statute of frauds, may be proved by parol evidence. This was considered as a settled rule of law in the cases of Jackson v. Steenbergh, (1 Johns. Cases, 153.) and Foote v. Colvin, (3 Johns. Rep. 216.)

If this is not to be considered an advancement to the daughter, as we think it clearly cannot, then there was ño trust completed, by a delivery of the deed to the trustee. Ambrose Benson being the person beneficially interested, and retaining the deed in his own possession, no interest vested in the trustee. Had the deed been intended as an advancement, possibly the delivery to Ambrose might have been considered as accruing to the benefit of his daughter. And in this view of the case, the title of Ambrose was complete by length of possession.

But admitting a delivery of the deed, the interest created thereby was a resulting trust for Ambrose Benson, who paid the consideration money; and if the legal estate was, by that deed, vested in his daughter Keziah, the lessor of the plaintiff cannot avail himself of his purchase from her and her husband, in the year 1786, since he purchased with full notice of the trust, and was, therefore, guilty of fraud, although he might have paid a valuable consideration. (1 Cruise's Dig. 485. Fonb. Eq. b. 2. c. 6. s. 2. and note.) If that deed was not absolutely void, yet the lessor of the plaintiff would be considered a trustee for Ambrose Benson, who was the real owner; and, if necessary, the lapse of time is amply sufficient to warrant the presumption of an execution of the trust, by a release to Ambrose, the ccstuy que trust. Besides, it appears from the confessions of the lessor, that upon discovering that the deed of 1766, given by him to Keziah, had been surreptitiously taken away, he gave another deed to Ambrose Benson himself, which deed, if it contained a warranty, Would pass any title subsequently acquired by the grantor. (Co. Litt. 265. a.)

There is another and conclusive objection to the plaintiff’s right to recover in this action, which is the adverse possession of Ambrose Benson, at the time the deed was given by More-house and his wife, in 1786, to the lessor of the plaintiff, It is unnecessary to recapitulate the testimony on this point. An examination of it will abundantly show that Ambrose Benson, from the year 1766 until the time of his death, which was about ten or twelve years ago, continued in possession of the premises in question, using and improving them as his own, and in hostility to any right or claim that might be set up under the deed to Keziah. The circumstances stated by some of the witnesses, that he sometimes called the farm Morehouse’s and Keziah’s, is entitled to but little weight, in opposition to the mass of evidence showing that he held it in defiance of that title. In whatever point of view, therefore, this case is considered, there must be judgment for the defendants.

Judgment for the defendants, 
      
      
         Wickham v. Conklin, (8 Johns. Rep. 220.) Whitaker v. Cone, (2 Johns. Cases, 58. Woodworth v. Janes, (2 Johns. Cases, 4l.) 2 Caines' Rep. 147.
     