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.
(y) See Grey v. G., (1677) 2 Sw. 594, 598.
(z) Maddison v. Andrew, (1747) 1 Ves. sen. 57, 61 ; Skeats v. S., (1842) 2 Y. & C. C. C. 9 ; 12 L. J. Ch. 22 ; Robinson v. Preston, (1858) 4 K. & J. 505 ; 27 L. J. Ch. 394.
(a) Rider v. Kidder, (1805) 10 Ves. 360.
(4) Sooty. Foster, (1858) 4 K. & J. 152.
(c) Slilemanv. Ashdown, (1742) 2 Atk. 477, 480.
(d) Scroopev. S., (1663) 1 Ch. Ca. 27; Back v. Andrew, (1690) 2 Vera. 120.
Though, where property is purchased in the name of a wife or child, the purchase is, prima facie, an advancement, still, the relation between the parties only raises a presumption of the intention of the purchaser to advance the nominee, which presumption may be rebutted by evidence of a contrary intention. Contemporaneous acts (/) and even contemporaneous declarations (m) of the purchaser, may amount to such evidence (n) ; and surrounding circumstances may be taken into consideration, to show whether a gift or a trust was intended (o) ; but subsequent acts (p) and declarations (q) of the purchaser are not, though the subsequent acts or declarations of both parties (r), or of the child or other nominee of the purchaser (s), are, evidence to support the trust; but, generally speaking, we are to look at what was said and done at the time (t). In one case, which seems scarcely consistent with the authorities, where a father had transferred stock into the joint names of himself, his wife, and child, an affidavit by the transferor nine years afterwards that no trust was intended, and that the transfer was made under a misapprehension as to its legal effect, was admitted to rebut the presumption of advancement (u).
Presumption in favour of advancement may be rebutted by contemporaneous acts or declarations ; but not by subsequent acts or declarations of purchaser; aliter of nominee.
(e) Devoy v. D., (1857) 3 Sm. & G. 403 ; 26 L. J. Ch. 290.
(f) Dyer v. D., (1788) 2 Cox, 92 ; Swift v. Davis, (1798) 8 Ea. 354, n. ; Murless v. Franklin, (1818) 1 Sw. 13 ; Skeats v. S., siq).; which together overrule Dickinson v. Shaw, (1770) 1 Wat. Copyholds, 222 ; and see Jeans v.Cooke, (1857) 24 Beav. 513 ; 27 L. J. Ch. 202.
(g) See Dimmer v. Pitcher, (1833) 2 M. & K. 262 ; and Back v. Andrew, 2 Vern. 120, 683. As to the effect on right of survivorship in respect to a joint banking account of husband and wife, see Marshal v. Crutwell, (1875) 20 Eq. 328 ; 44 L. J. Ch. 504 ; Lloyd v. Pughe, (1872) 8 Ch. 88; 42 L. J. Ch. 2S2; and cf. Re Young, (1885) 28 Ch. D. 705 ; 54 L. J. Ch. 1065.
(h) Lamplugh v. L., (1709) 1 P.W. 1ll ; Crabb v. C, (1834) 1 M. & K. 511 ; and ib. 543 ; 3 L. J. N. S. Ch. 181 ; but see Skeats v. S., sup. ; and Kingdom, v. Bridges, (1688) 2 Vern. 67.
(i) Me Eykyn's Tr., (1877) 6 Ch. D. 115.
(k) Ouseley v. Anstrttther, (1847) 10 Beav. 453,461; Be Cartels' Tr., (1872) 14 Eq. 217; 41 L. J. Ch. 631.
(I) Murless v. Franklin, (1818) 1 Sw. 13; Prankerd v. P., (1820) 1 S. &S. 1.
Where a copyholder, upon taking a purchase in his son's name, at the same Court surrendered it to the use of his own will (x) ; or, taking a purchase in the joint names of himself and two sons, at the same Court took a licence to lease for seventy years (y), it was held to be no advancement. Where by the custom of a manor, copyholds were held for lives successive, the legal estate being in the cestui que vie, and it appeared that on previous renewals the beneficial owner had selected other nominees, the insertion of the name of an illegitimate grandchild, who lived with and was maintained by him, was held insufficient to raise a presumption of advancement (s) ; but where a father purchased copyholds, paid the fine, and was admitted to hold to himself without words of limitation during the lives of his three sons and the life of the survivor - the custom of the manor being to hold for lives successive, and to require the first cestui que vie on the rolls to be admitted - this was held, after the father's death, to be an advancement (a). Where a father took a mortgage in his son's name, the presumption of advancement was rebutted by the evidence of the solicitor who prepared the deed, and who explained the circumstances under which the son's name was used ; though there was evidence of a subsequent declaration by the father that the mortgage was taken in the son's name for the purpose of advancement and of escaping the payment of duty (b). Where a father has purchased in his son's name, the fact of his having from the first treated him as a mere trustee, rebuts the presumption of advancement (c) ; so, where the purchase is made with some particular object, as to sever a joint-tenancy (d). Where the contract was entered into by the son alone, he having no property of his own, and the father lent him a part of the purchase-money, and for the residue, which was payable by instalments, both father and son gave joint and several promissory notes under which the father paid the first instalnient, it was held after the death of the father that neither the instalment paid by him during his lifetime nor subsequent instalments paid by his executors were to be taken as an advancement made by the father: that looking at all the circumstances, the contract was the contract of the son only, and the relationship between the father and son merely that of surety and principal (c). The general presumption in favour of advancement cannot be negatived or qualified by transactions relating merely to other estates (f).
By what contemporaneous acts or circumstances.
(m) Williams v. W., (1863) 32 Bear. 370. Closely antecedent acts and declarations may be admitted, see Crabb v. C, (1834) 1 M. & K. at p. 539.
(n) Sidmouth v. S., (1840) 2 Beav. 447, 455 ; Collinson v. C, (1853) 3 D. M. & G. 409 ; and see Kilpin v. K., (1834) 1 M. & K. 520, where the declarations were made verbally to the purchaser's solicitor.
(o) Fowkes v. Pascoe, (1875) 10 Ch. 343, 352 ; 44 L. J. Ch. 367 ; Marshal v. Crutwell, (1875) 20 Eq. 328, 329 ; 41 L. J. Ch. 504; Re Whitehouse, (1887) 37 Ch. D. 683 ; 57 L. J. Ch. 161.