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.
(e) Re Duke of Marlborough, 1894,
And parol evidence is admissible to prove that what purports to be an absolute conveyance was, in fact, a mortgage(h).
Conveyance may be shown to be mortgage.
As a general rule, no resulting trust arises when the conveyance is taken in the name of a child (i), grandchild (k) (if the father be dead) (/), or wife (m) of a sole (n) purchaser ; or in the names of several children, either alone (o) or associated with the wife (p), and the rule seems to include the illegitimate children, if recognized as such (q), of the purchaser (r); so, also, persons to whom the purchaser has placed himself in loco parentis (s); and adult (t) as well as infant, and female (u) as well as male children; and to extend to purchases by a female as well as by a male ancestor or quasi ancestor (x) ; but not to purchases in the name of a parent (y), brother (z), or other remoter relative; or of a woman with whom the settlor is living in concubinage (a), or - which in legal contemplation is the same thing - under the sanction of a marriage rendered void by the Marriage Act, 1835 (b).
But primd facie no trust results on purchase in name of wife or child.
2 Ch. 133 ; 63 L. J. Ch. 471, overruling Leman v. Whitley, (1828) 4 Rus. 423 ; Rochefoucauld v. Boustead, sup. (f) Ryal v. R., (1739) cited Amb. 413; Willis v. W., (1740) 2 Atk. 71; and see Lench v. L., (1805) 10 Ves. 511, 519; Heard v. Pilley, (1869) 4 Ch. 548, 552.
(h) Cripps v. Jee, (1793) 4 Br. C. C. 472 ; Muttyloll Seal v. Annundo-chnnder Sandle, (1849) 5 Mo. Ind. App. 72.
(i) Mumma v. M., (1687) 2 Vern. 19; Grey v. G., (1677) 2 Sw. 594; Redington v. R., (1794) 3 Ridg. 106, 180 ; Sidmouth v. S., (1840) 2 Beav. 447; 9 L. J. N. S. Ch. 242; Christy v. Courtenay, (1850) 13 Beav. 96 ; Lee v. Flood, (1853) 17 Jur. 544 ; see Re Whitehouse, (1887) 37 Ch.D. 683; 57 L. J. Ch. 161; and ef. Stock v. McAvoy, (1872) 15 Eq. 55; 42 L. J. Ch. 230, where there were acts of ownership by the father sufficient to rebut the presumption of advancement. The presumption arises in the case of personal as well as of real property;
Crabb v. C, (1834) 1 M. & K. 511 ; 3 L. J. N. S. Ch. 181 ; Sidmouth v. S., sup.; Hepworth v. H., (1870) 11 Eq. 10 ; 40 L. J. Ch. 1ll ; Re Richardson, (1882) 47 L. T. 514. As to a father remaining liable for calls in a winding-up, after a transfer in good faith into the name of his infant son, see Rcid's case, (1857) 24 Beav. 318 ; Weston's case, (1870) 5 Ch. 614; 39 L. J. Ch. 793; Richardson's case, (1875) 19 Eq. 588; 44 L. J. Ch. 252 ; and cf. Maxwell's case, (1857) 24 Beav. 321. See Buckley, 8th ed. 45.
(A) See Kilpin v. K., (1834) 1 M. & K. 520 ; Loyd v. Read, (1719) 1 P. W. 607.
(/) Ebrand v. Dancer, (1680) 2 Ch. Ca. 26.
(m) Glaister v. Hewer, (1803) 8 Ves. at p. 199; 1 Wh. & T. L. C. 7th ed. 820.
(n) See Finch v. F., (1808) 15 Ves. at p. 51.
(o) S. C., ib. 43 ; Murless v. Franklin, (1818) 1 Sw. 13.
(p) Rack v. Andrew, (1690) 2 Vern. 120.
And though the point was otherwise decided by Lord Hardwicke (c), the same rule will, it appears, prevail, when, upon a purchase by a father, the conveyance is taken in the joint names of himself and his child (d), or in the names of himself, his wife, and child (e). So, in the case of copyholds, the children take beneficially, though they are named to take in succession after the father (f) ; on a purchase by a husband in the joint names of himself and his wife, the latter surviving will take beneficially (g) ; and if a stranger's name is also inserted, he will, it appears, take as a trustee for the children or wife, as the case may be (k). Where stock was transferred by a husband into the joint names of himself, his wife, and two strangers who were two of the trustees of his marriage settlement, it was held to be an advancement of the wife and not an augmentation of the settlement funds, and that the strangers were trustees for the wife on her surviving her husband (i). But where the father advances to the trustees of his settlement money to make up the deficiency on a contemplated purchase with settlement funds, the presumption is that the advance was intended for the benefit of all persons interested under the settlement (k).
Though purchaser's name is also inserted; or nominees take successively.
(q) See Beclcford v. B., (1774) Lofft, 490 ; and see Kilpin v. K., (1834) 1 M. &K. at p. 542.
(r) See Tucker v. Burrow, (1865) 2 H. & M. 515, where an illegitimate grandchild, though maintained by his grandfather, -was thought not to be within the rule; sed qucere.
(s) See Ebrand v. Dancer, (1G80) 2 Ch. Ca. 26 ; Currant v. Jago, (1844) 1 Col. 261 ; Soar v. Foster, (1858) 4 K. & J. 152, 157 ; Tucker v. Burrow, (1865) 2 H. & M. 515, see judgment; Re Scottish Equit. Life Ass., 1902, 1 Ch. 282 ; 71 L. J. Ch. 189 ; Skidmore v. Bradford, (1869) 8 Eq. 134 ; a case of nephew adopted as a son, and induced to sign the contract. A person may stand in loco parentis to a child living with and maintained by his father: Powys v. Mam-field, (1837) 3 M. & C. 359 ; Pym v. Lockyer, (1841) 5 M. & C. 29 ; Be Ormc, (1884) 50 L. T. 51. As to the meaning of "in loco parentis,"" see Fowkes v. Pascoe, (1875) 10 Ch. 343, 350 ; 44 L. J. Ch. 307 ; Be Orme, (1884) 50 L. T. 51, 53, and see Be Pollock, (1885) 28 Ch. D. 552; 54 L. J. Ch. 489.
(t) Grey v. G., (1677) 2 Sw. 594; Sidmouth v. S., (l840) 2 Beav. 447 , 456.
(u) See Lady Gorge's case, (1634) cited Cro. Car. 550 ; Bone v. Pollard, (1857) 24 Beav. 283.
(x) See Logd v. Bead, (1719) IP. W. 607; Sayre v. Hughes, (1868) 5 Eq. 376; 37 L. J. Ch. 401 ; Batstone v. Salter, (1868) 19 Eq. 250; 44 L.J. Ch. 209 ; but see Be Be Visme, (1863) 2 D. J. & S. 17; 33 L. J. Ch. 332; Sennet v. B., (1879) 10 Ch. D. 474 ; for the case of a step-mother, see Todd v. Moorhouse, (1874) 19 Eq. 69.