This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Voorhees v. Presbyterian Church of Amsterdam, 8 Barb. 135; reversed, 17 Barb. 103. See Adlington v. Cann, 3 Atk. 141; Muckleston v. Brown, 6 Yes. 52; Stickland v. Aldridge, 9 Ves. 516.
2 Hills v. Eliot, 12 Mass. 26. See Baldwin v. Campfield, 4 Halst. (N. J.) Ch. 891.
1 Lloyd v. Spillet, 2 Atk; 148; Barnardiston Ch. 388. Mr. Roberts, in quoting this case, objects to the classification of Lord Hardwicke, which he says is confined to (wo kinds of resulting trusts. He appears to have overlooked the third class which is mentioned in the succeeding paragraph of his Lordship's opinion, and which seems to embrace in substance those cases which he enumerated as omitted in the classification. Roberts on Frauds, p. 97.
2 Church v. Sterling, 16 Conn. 388; Brothers v. Porter, 6 B. Mon. (Ky.) 106; Murphy v;. Hubert, 7 Pa. St 420; Hoxie v. Carr, 1 Sumn. (C. C.) 173.
3 Smith v. Burnham, 3 Summ. (C. C.) 435; Williams v. Brown, 14 111. 200; McElderry v. Shipley, 2 Md. 25; Jackraan v. Ringland, 4 Watts & S. (Pa.) 149, and cases there cited; Foote v. Bryant, 47 N. Y. 544; Smith v. Smith, 85 I11. 189; Reynolds p. Sumner, 126 111. 58; Gainus v. Cannon, 42 Ark. 503; McClure v. Doak, 6 Baxter (Tenn.) 364; Champlin not upon an executory contract to hold land in trust.1 Even where the contract to hold it in trust is the means of obtaining the legal title, a case which falls under the third class mentioned by Lord Hardwicke, the trust is not created by the contract, but results or is implied from the fraud; as will be made clear when we come to that class in its order.
§ 85. Resulting trusts of the first class, in which the purchase-money is paid by one and the deed taken in the name of another, may be pro tanto, or for a part of the estate proportionate to such part of the purchase-money as the cestui que trust may have advanced. The case of Crop v. Norton, in which Lord Hardwicke appears to have expressed the opinion that there could be no resulting trust unless the entire consideration proceeded from the cestui que trust, was afterwards disregarded by Sir Thomas Plumer, Vice Chancellor, in Wray v. Steele, where it was held that a joint advance by several upon a purchase in the name of one gave a resulting trust; and it seems to be not law in England, as it certainly is not in this country, if such was really the point decided by it.2
§ 86. But there is a farther rule upon this subject, to which it seems that Crop v. Norton may be referred; and that is, that though there may be a trust of a part only of the estate v. Charaplin, 136 111. 309; Knox v. McFarran, 4 Col. 586. In New York, Kentucky, Minnesota, Indiana, and Michigan, trusts resulting from purchase with another's money have been abolished by statute.
1 Rogers v. Murray, 3 Paige (N. Y.) Ch. 390; Page v. Page, 8 N. H. 187; Jackson v. Morse, 16 Johns. (N. Y.) 197. See Green v. Drummond, 31 Md. 71.
2 Crop v. Norton, 9 Mod. 233; 2 Atk. 74; Wray v. Steele, 2 Ves. & B. 388; Benbow v. Townsend, 1 Myl. & K. 506; Daley. Hamilton, 5 Hare, 369; Ryall v. Ryall, 1 Atk. 59; Buck v. Swazey, 35 Me. 41; Livermore v. Aldrich, 5 Cush. (Mass.) 434; Powell v. Monson & Brimfield Manuf. Co., 3 Mason (C. C.) 362-364; Botsford v. Burr, 2 Johns. (N. Y.) Ch. 405; Stark v. Cannady, 3 Litt. (Ky.) 399; Brothers v. Porter, 6 B. Mon. (Ky.) 106; Ross v. Hegeman, 2 Edwards (N. Y.) Ch. 373; Larkins v. Rhodes, 5 Port. (Ala.) 195; Pumphry v. Brown, 5 W. Va. 107; Dudley v. Bachelder, 53 Me. 403; Reynolds v. Morris, 17 Ohio St. 510; Beadle v. Seat, 15 So. Rep. (Ala.) 243.
1 White v. Carpenter, 2 Paige (N. Y.) Ch. 217; Sayre v. Townsend, 15 Wend. (N. Y.) 647; Perry v. McHenry, 13 111. 227; McGowan v. McGowan, 14 Gray (Mass.) 119; Buck v. Warren, 14 Gray (Mass.) 122; Gee v. Gee, 2 Sneed (Tenn.) 395; Wheeler v. Kirtland, 23 N. J. Eq. 22; Firestone v. Firestone, 49 Ala. 128; Olcott v. Bynum, 17 Wall. (U.S.) 44; Perkins v. Cheairs, 2 Baxt. (Tenn.) 194; Bailey v. Hem-enway, 147 Mass. 326. See Green v. Drummond, 31 Md. 71. Hall v. Young, 37 N. H. 134, and Fleming v. McHale, 47 111. 282, seem to be inconsistent with this doctrine.
2 Sayre v. Townsend, 15 Wend. (N. Y.) 647; Baker v. Vining, 30 Me. 121; Cutler v. Tuttle, 19 N. J. Eq. 549; Olcott v. Bynum, 17 Wall. (U S.) 44. See, however, Jenkins v. Eldredge, post, § 111, note. In so far as this case may be supposed to conflict with the rule stated in the text, it is doubted in McGowan v. McGowan, supra.
3 Buck v. Pike, 11 Me. 9; Brothers v. Porter, 5 B. Mon. (Ky.) 106. See Seiler v. Mohn, 37 W. Va. 507. 4 Buck v. Swazey, 35 Me. 41.
§ 88. It is clear from several cases that, if part of the consideration of the purchase be the waiver by a third person of a claim or right of indefinite value, that circumstance prevents the party who pays all the money part of the consideration from claiming a resulting trust in the whole purchase; 5 hence it would seem reasonable that such a waiver, being in the nature of a contribution towards the purchase, should entitle the party making it to a resulting trust pro tanto, if its value can be ascertained, as well as an actual money contribution to the same amount; and such an opinion was expressed by Mr. Justice Story in the case of Jenkins v. Eldredge.6
§ 89. A resulting trust attaches only when the payment is made at the time of the purchase, and a subsequent advance will not have that effect,7 even though it be made for one on the deed, the estate will be liable to the trusts, if the application of the trust-money to the purchase be clearly proved.1 And so if one partner make a purchase of land to himself, paying for it with the partnership funds, a trust results to his copartners,2 though it is otherwise if the co-partnership be not at the time actually existing, but only resting in executory agreement.3 Where land is bought with partnership funds, but the title is taken in the name of the partners as individuals, there is a resulting trust to the firm.4