This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Where, upon a purchase, either by one or several, the conveyance is taken in the name of a stranger; or where, in the case of a joint-purchase, the conveyance is taken in the names of some, but not all, of the purchasers who pay for the estate (o), there will - subject to the exceptions .subsequently noticed, and subject, of course, to any express stipulation (even by parol) on the point (p) - be a resulting trust in favour of the other parties who have paid, or helped to pay, the consideration-money; and this, whatever may be the tenure of the estate, or the mode in which the property is conveyed (q) ; unless the effect would be to break in upon the policy of an Act of Parliament (r) ; and no written declaration of trust is necessary, resulting trusts being expressly excluded from the operation of the Statute of Frauds (s). But the mere fact of the money being so paid, not in pursuance of the original agreement, but either as a matter of necessity, or by virtue of a pecuniary arrangement between the parties at the time of completion, would not have this effect (t). If, for instance, A. and B. agree to purchase an estate, the money as between themselves to be advanced in certain specified proportions, and, at the time fixed for completion, A., either through B.'s temporary inability to pay, or merely for his own convenience, advances the entire amount, this, it appears, will not give A. a claim to the whole estate, the amount paid by A. for B.'s share being merely a loan of that amount from A. to B. (u).
If consideration is paid by others than nominal purchasers, there will bo a resulting trust without writing.
(h) Dale v. Hamilton, (1847) 2 Ph. at p. 275.
(i) See Cowell v. Watts, (1850) 2 H. & Tw. 224.
(k) S. 7 ; see Lewin, 11th ed. 55.
(I) See Dye v. D., (1884) 13 Q. B. D. 147 ; 53 L. J. Q. B. 442, -where it was held that an agreement, mado upon marriage, that the intended wife's freeholds should be for her separate use, and signed by the husband alone, was invalid as a declaration of trust within the section.
(m) Scales v. Maude, (1855) 6 D. M. & G. 43; 25 L. J. Ch. 433.
(n) Jones v. Lock, (18G5) 1 Ch. 25; 35 L.J. Ch. 117.
(o) Wray v. Steele, (1814) 2 V. & B. 388.
A manorial custom that a nominal purchaser of copyholds shall, notwithstanding the doctrine of resulting trusts, take beneficially unless the trust is mentioned on the Rolls of the Manor, is bad (x) .
Custom negativing doctrine of resulting trust, bad.
Where an assurance is taken in the joint names of A. the purchaser, and B., and there is clear evidence of A.'s intention that B., if he survives, shall take beneficially, and not as a trustee for A.'s estate, B. surviving will be entitled, notwithstanding that the income has, with his concurrence, been enjoyed by A. alone during his life (y).
No resulting trust where intention of survivorship is clear.
(p) Lady Bellasis v. Compton, (1693) 2 Vern. 291 ; Rider v. Kidder, (1805) 10 Ves. 360.
(q) See Dyer v. D., (1788) 2 Cox, 92, 93 ; 2 Wh. & T. L. C. 7th ed. 803. See also Mercier v. M., 1903, 2 Ch. 98 ; 72 L. J. Ch. 511, where there was held to be a resulting trust for the wife in respect of property purchased by the husband chiefly out of her income.
(r) See Ex p. Houghton, (1811) 17 Ves. 251 ; Ex p. Yallop, (1808) 15 Ves. at p. 68 ; cases under the Ship Registry Acts; and see the Merchant Shipping Acts, 1854 to 1880, repealed ; Merchant Shipping Act,
1894 ; Sug. 14th ed. 701 ; Lewin, 11th ed. 181, 182.
(s) S. 8.
(t) See Wood v. Birch, (1804) Sug. 14th ed. 700.
(u) S. C. ; Aveling v. Knipe, (1815) 19 Ves. 441, 445 ; Bartlett v. Pickers-gill, (1760) 1 Ed. 515; Rochefoucauld v. Boustead, 1897, 1 Ch. 196 ; 66 L. J. Ch. 74.
(x) Lewis v. Lane, (1834) 2 M. & K. 449, overruling Edwards v. Fidel, (1818) 3 Mad. 237; see Edwards v. E., (1836) 2 Y. & C. 123 ; Jeans v. Cooke, (1857) 24 Beav. 513; 27 L. J. Ch. 202.
For the purpose of raising a resulting trust, the mode in which the consideration has been paid may be proved by parol evidence (z), either during the life of the nominal purchaser, or after his decease (a), though, whether it can prevail against a direct denial in his answer seems to be doubtful (b); and it will, in any case, be received with great caution (c) : parol evidence will also be received to prove that a person who has paid for the estate with his own money, and taken a conveyance in his own name, was, in fact, the agent of another (d) ; and to raise a resulting trust in favour of a vendor who has conveyed the estate without receiving the purchase-money; even though there is parol evidence to show that the transaction was really a conveyance in trust, and not a sale (e). And where parol evidence is received it need not be confined to the direct fact of payment ; for instance, evidence of the poverty of the nominal purchaser has been received in proof of the impossibility of his having paid for the estate (f). The Court will not in any case admit the plea that parol evidence is not admissible under the Statute of Frauds, where the result would be to make the statute itself an instrument of fraud (g).
Payment of consideration may be proved by parol evidence.
(y) Garrick v. Taylor, (1860) 29 Beav. 79 ; affd. 10 W. R. 49 ; 31 L. J. Ch. 68.
(z) Though opposed to inconclusive written evidence, Cripps v. Jee, (1793) 4 Br. C.C.472; see Leman v. Whitley, (1828) 4 Rus. 423, 427; 6 L. J. (0. S.) Ch. 152.
(a) See Sir John Peachy' s case, (1759) Sug. 14thed. 702; Bench v. L., (1805) 10 Ves. 511, 517 ; Sug. V. & P. 11th ed. 910 ; Lewin, 11th ed. 184.
(5) Newton v. Preston, (1699) Ch. Prec. 103 ; see Smith v. Wilkinson, (1797) cited 3 Ves. 705 ; Sug. 14th ed. 701.
(c) Gascoigne v. Thwing, (1685) 1 Vern. 366; Groves v. G., (1829) 3 Y. & J. 163.
(d) Rochefoucauld v. Bomtpad, 1837, 1 Ch. 190 ; 66 L. J. Ch. 74, over-ruling Bartlett v. Pickersgill, (1760) 1 Cox, 15 ; 1 Ed. 515, and cases there cited. And specific performance of a contract for purchase made by an agent, though appointed merely by parol, will be enforced: Rochefoucauld v. Boustead, sup. ; Heard v. Pilley, (1869) 4 Ch. 549; and where the agency is proved, but there is uncertainty as to what portion of the estate the agent was buying for himself, and what for his principal, specific - performance was decreed with a- reference to chambers to ascertain this point : Chattock v. Muller, (1878) 8 Ch. D. 177. In this connection the case of an agent must be distinguished from that of a trustee to this extent, that, though on the signing of the contract the estate passes in Equity to the real purchaser, - and he may be shown by parol evidence, - yet the nominal is not a trustee for the real purchaser so as to come within s. 7 of the Statute, but a mere agent under s. 4, whose appointment need not be in writing: Cave v. Mackenzie, (1887) 46 L. J. Ch. 564 ; Rochefoucauld v. Boustead, sup.