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 Sweet v. Jacocks, 6 Paige (N. Y.) Ch. 355.
2 Dwinel v. Veazie, 36 Me. 509; Depeyster v. Gould, 2 Green (N. J.) Ch. 474; Taliaferro v. Taliaferro, 6 Ala. 404. In this and the next preceding class of cases, the fact of the appropriation of the debt or claim to the purchase is always provable by parol, and it would seem that as it must rest in the mere agreement of the parties to that effect, there is ample opportunity afforded for a fraudulent pretence by the cestui que trust. But the rule admitting such proof is clearly settled.
3 Buck v. Swazey, 35 Me. 41.
4 Forsyth v. Clark, 3 Wend. (X. Y.) 637.
5 Crop v. Norton, 9 Mod. 233; Sayre v. Townsend, 15 Wend. (N. Y.) 647.
6 Jenkins v. Eldredge, 3 Story (C. C.) 181, 286. See this case abstracted, post, § 111, note.
7 Buck v. Swazey, 35 Me. 41; Hollida v. Shoop, 4 Md. 465; Alexander v. Tarns, 13 111. 221; Conner v. Lewis, 16 Me. 268; Foster v Trustees who was surety for the original purchaser, and is finally compelled to pay.1
§ 90. It is obvious that the purchase-money must, at the time of payment, be the property of the party paying it and setting up the trust;2 and the fact that the purchase was made with borrowed money will not establish a resulting trust in favor of the lender.3 If, however, the party who takes the deed lend or advance the price to the party who claims the benefit of it, before or at the time of the purchase, so that the money or property paid actually belongs to the latter, a trust results.4 But it is otherwise where the party taking the deed pays his own money for it, with an understanding or agreement that it may be afterwards repaid and the land redeemed by him who sets up the trust.6 If a trustee or executor purchase estates with the trust money, and take a conveyance to himself without the trust appearing of Athenaeum, 3 Ala. 302; Jackson v. Moore, 6 Cowen (N. Y.) 706; Graves v. Dugan, 6 Dana (Ky.) 331; Botsford v. Burr, 2 Johns. (N. Y.) Ch. 405; Rogers v. Murray, 3 Paige (N. Y.) Ch. 390. But see Harder v. Harder, 2 Sandf. (N. Y.) Ch. 19; Wells v. Stratton, 1 Tenn. Ch. 328; Ducie v. Ford, 138 U. S. 587; Knox v. McFarran, 4 Col. 586; Williams v. County of San Saba, 59 Texas, 442.
1 Buck v. Pike, 11 Me. 9; Pinnock v. Clough, 16 Vt. 500.
2 Jackson v. Bateman, 2 Wend. (N. Y.) 570; Getman v. Getman, 1 Barb. (N. Y.) Ch. 499; Smith v;. Burnham, 3 Sumn. (C. C.) 435; Hertle v. McDonald, 2 Md. Ch. 128; Gibson v. Foote, 40 Miss. 788; Walter v. Klock, 55 111. 362; Truski v. Streseveski, 60 Mich. 34; Fickett v. Durham, 100 Mass. 419.
3 Smith v. Garth, 32 Ala. 368; Gibson v. Foote, 40 Miss. 788; Jackson v. Stevens, 108 Mass. 94; Harvey v. Pennypacker, 4 Del. Ch. 445.
4 Reeve v. Strawn, 14 111. 94; Bartlett v. Pickersgill, 1 Eden, 515; 1 Cox, 15; 4 East, 577, note; Lathrop v. Hoyt, 7 Barb. (N. Y.) 59; Mc-Donough v. O'Niel, 113 Mass. 92; Wallace v. Carpenter, 85 111. 590; Smith v. Smith, 85 I11. 189; Keller v. Kunkel, 46 Md. 565; Walton v. Karnes, 67 Cal 255; Ward v. Matthews, 73 Cal 13.
5 Getman v. Getman, 1 Barb. (N. Y.) Ch. 499; Blodgett v. Hildreth, 103 Mass. 484; Fischli v. Dumaresly, 3 A. K. Marsh. (Ky.) 23; Jackman v. Ringland, 4 Watts & S. (Pa.) 149; Kellum v. Smith, 33 Pa. St. 164; Kendall v. Mann, 11 Allen (Mass.) 15; Morton v. Nelson, 145 111. 586; Parsons v. Phelan, 134 Mass. 109; Allen v. Richard, 83 Mo. 55.
§ 91. The fact of payment or of the ownership of the money may always be shown by parol evidence,5 but such evidence must be clear and strong,6 particularly after considerable lapse of time,7 or when the trust is not claimed till after the death of the alleged trustee.8 The testimony of the trustee is competent for this purpose;9 but mere evidence, given during his lifetime, of his declarations to that effect seems to be inadmissible, as not being the best existing evidence.1 So if it appears upon the face of the conveyance, by recital or otherwise, that the purchase was made with the money of a third person, that is clearly sufficient to create a trust in his favor.2 Evidence is also admissible of the mean circumstances of the pretended owner of the estate, tending to show it impossible that he should have been the purchaser,3 although that fact alone would not probably be sufficient to establish the trust.4
1 Lane v. Dighton, Arab. 409; Ryall v. Ryall, 1 Atk. 59; Wilson v. Foreman, 2 Dickens, 593; Kisler v. Kisler, 2 Watts (Pa.) 323; Sugden, Vend. & P. 919, and cases cited.
2 Phillips v. Crammond, 2 Wash. (C. C.) 441; Buck v. Swazey, 35 Me. 41. And see Fairchild v. Fairchild, 5 Hun. (N. Y.) 407, although resulting trusts are abolished by statute in that State.
3 Dale v. Hamilton, 5 Hare, 369; Smith v. Burnham, 3 Sumn. (C. C.) 435.
4 Paige v. Paige, 71 Iowa, 318.
5 It is needless to cite the numerous cases to this effect. They are referred to in other parts of this section, and are collected at length in the American editor's note to Sugden on Vendors and Purchasers, 909.
6 Sewell v. Baxter, 2 Md. Ch. 447; Baker v. Vining, 30 Me. 121; Hollida v. Shoop, 4 Md. 465; Malin v. Malin, 1 Wend. (N. Y.) 625; Kendall v. Mann, 11 Allen (Mass.) 15; Cutler v. Tuttle, 19 N. J. Eq. 549; Gascoigne v. Thwing, 1 Vern. 366; Finch v. Finch, 15 Ves. 43. Entries in books adduced to prove payment by a third person must be unequivocal to that effect. Dorsey v. Clarke, 4 Harr. & J. (Md.) 551. See Kennedy v. Kennedy, 57 Mo. 73; Whitsett v. Kershow, 4 Col. 419; Johnston v. Johnston, 138 111. 385.
7 Carey v. Callan, 6 B. Mon. (Ky.) 44; Cutler v. Tuttle, 19 N. J. Eq. 549.
8 Enos v. Hunter, 4 Gilra. (111.) 211; Midmer v. Midmer, 26 N. J. Eq. 299; Pillow v. Thomas, 1 Baxt. (Tenn.) 120.
9 Ambrose v. Ambrose, 1 P. Wins. 321; Ryall v. Ryall, 1 Atk. 59; Malin v. Malin, 1 Wend. (X. Y.) 625. See Lord Gray's case, Freem. Ch. 6.
§ 92. As parol evidence is admissible to show facts raising a presumption of a resulting trust, so it is also admissible to rebut that presumption;6 and for that purpose, where the plaintiff set up a resulting trust, verbal evidence of his admissions that the whole land was the defendant's, and that he had nothing to do with it, has been held competent.6 And so proof of an express trust, though by parol only, will cut off a resulting trust; the latter being left by the statute as at common law.7 In like manner, a previous agreement that the nominal purchaser should also have the whole legal and equitable estate will, when proved, be an answer to the presumption of a resulting trust.8 And this presumption may be overcome by others that arise from the natural relations, as e. g. presumption of advancement for a child, or provision for a wife.1