152. Implied trusts are those created by operation of law in order to do justice between the parties. They are either
(a) Resulting trusts (p. 265), or
(b) Constructive trusts (p. 269).
Some of the cases which are treated as trusts are not properly called trusts. They are such only because the person wronged is given some of the remedies which a cestui que trust has.73 As to
66 Livingston v. Livingston, 2 Johns. Ch. (N. Y.) 537; Clarke v. Saxton, 1 Hill, Eq. (S. C.) 69; Berry v. Norris, 1 Duv. (Ky.) 302.
67 Jevon v. Bush, 1 Vera. 342.
68 1 Ferry, Trusts (4th Ed.) § 55.
69 Shryock v. Waggoner. 28 Pa. St. 430.
70 Carpenter v. Marnell, 3 Bos. & P. 40; Kip v. Bank, 10 Johns. (N. T.) 63; Ontario Bank v. Mumford, 2 Barb. Ch. (N. Y.) 500.
71 Emery v. Chase, 5 Me. 232; Brewer v. Hardy, 22 Pick. (Mass.) 376; Hayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258.
72 1 Perry, Trusts (4th Ed.) § 60; Neilson v. Lagow, 12 How. 107.
73 1 Perry, Trusts (4th Ed.) § 166; 2 Pom. Eq. Jur. (2d Ed.) § 1058; Greenthe division of implied trusts into resulting and constructive, a good deal of confusion exists; and, while the mere matter of classification may not Be attended with any important legal consequences, it seems well to make the distinction clear, and treat as constructive trusts only those into which an element of fraud enters.74
Trusts created by operation of law, as already stated, are not executed by the statute of uses, nor are they within the statute of frauds; for. in the nature of things, they must be established by evidence outside of the instrument by which the legal title is transferred.75
153. Resulting trusts are those in which the court seeks to carry out the presumed intention of the parties. The principal classes of resulting trusts are:
(a) Those where the grantor disposes of only the legal title (p. 266).
(b) Those where the object of the trust fails in whole or in part (p. 267).
The ruling element in a resulting trust is the probable intention of the parties.76 In every case in which a resulting trust arises, wood's Appeal, 92 Pa. St 181; Lathrop v. Bampton, 81 Cal. 17; Hammond v. Pennock, 61 N. Y. 145; Johnson v. Johnson, 51 Ohio, 446, 38 N. E. 61.
74 2 Pom. Eq. Jur. (2d Ed.) § 1053; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447; Dewey v. Moyer, 72 N. Y. 70; Huxley v. Rice, 40 Mich. 73; Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803.
75 Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790; Kennedy v. Kennedy, 2 Ala. 571; Connolly v. Keating, 102 Mich. 1, 60 N. W. 289; Cooksey v. Bryan, 2 App. D. C. 557; Rozell v. Vansyckle, 11 Wash. 79, 39 Pac. 270.
76 2 Pom. Eq. Jur. (2d Ed.) § 1031. Fraud is not a necessary element Tal-bott v. Barber, 11 Ind. App. 1, 38 N. E. 487. And see Thompson v. Marley, 102 Mich. 476, 60 N. W. 976.
There is the transfer of the legal title to land to one who is not in tended to hold the beneficial interest, or at least not all of it.77 Legal Title Only Conveyed.
In the first class of resulting trusts mentioned in the black-letter text, there is a transfer of the legal title only, without any intention to convey the beneficial interest.78 If a man transfers the legal title to land to one who is not entitled to the beneficial interest, the equitable title remains in the grantor, and the grantee is a mere trustee for him.79 Such cases were frequent even before the statute of uses, and were called "resulting uses." 80 The reason for the rule is that a court of equity will not presume an intention to convey the beneficial interest in lands to a stranger without any consideration. If, however, there is any consideration,81 or in the conveyance the use is declared to be to the grantee, as is the case in modern conveyances operating under the statute of uses, the beneficial interest passes to the grantee.82 A use is held to result only in cases where the fee is conveyed to the stranger. If any less estate is transferred, the presumption that the grantor did not intend to benefit the stranger is rebutted, and the grantee takes the beneficial interest83
77 Lloyd v. Spillet, 2 Atk. 150; 1 Perry, Trusts (4th Ed.) § 125; 2 Pom. Eq. Jur. (2d Ed.) § 1031
78 Hogan v. Stray born, 65 N. C. 279; Paice v. Archbishop of Canterbury, 14 Yes. 364; Levet v. Needham, 2 Vern. 138; Cooke v. Dealey, 22 Beav. 196.
79 1 Perry, Trusts (4th Ed.) § 150; Armstrong v. Wolsey, 2 Wils. 19. And see Burt v. Wilson, 28 Cal. 632.
80 Farrington v. Barr, 36 N. H. 86; Philbrook v. Delano, 29 Me. 410.
81 An actual consideration will prevent a trust resulting. Hogan v. Jaques, 19 N. J. Eq. 123. The consideration need not be expressed in the instrument of conveyance. Bank of U. S. v. Housman, 6 Paige (N. Y.) 526; Miller v. Wilson, 15 Ohio, 108. A good consideration is sufficient. Groff v. Rohrer, 35 Md. 327; Sharington v. Strotton, 1 Plow. 298. Cf. Mildmay 's Case, 1 Coke, 175. But not friendship. Warde v. Tuddingham, 2 Rolle, Abr. 783, pl. 5. The earlier cases hold a mere nominal consideration sufficient to rebut the presumption. Barker v. Keete, Freem. 249. And see Sandes' Case, 2 Rolle, Abr. 791.
82 See post, p. 409, and cf. Dillaye v. Greenough, 45 N. Y. 438; Squire v. Harder, 1 Paige (N. Y.) 494; Jackson v. Cleveland, 15 Mich. 94. Cf. Blodgett v. Hildreth, 103 Mass. 484; Stevenson v. Crapnell, 114 111. 19, 28 N. E. 379; Mckinney v. Burns, 31 Ga. 295.
83 Shortridge v. Lamplugh, 2 Salk. 678; Anon., Brooke, 89.
Failure of Object of Trust,
When lands are conveyed to a trustee, and the trust fails either in whole or in part, because of illegality, or of some defect in the instrument declaring it, as much of the trust as fails results back to the grantor, his heirs, or residuary devisee.84 The result is the same where the instrument conveying the legal title shows that the grantee is to hold it in trust, as, for instance, by the use of the words "in trust," or "upon the trusts hereafter to be declared," and no trusts are declared, or trusts are declared as to part of the estate only. In such case the grantor holds the beneficial interest under the trust which results.85