This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
20. 1 Perry. Trusts, Sec. L33; Whaley v. Whaley, 71 Ala. L59; Stewart v. Fellows, 128 111. 480. 20 N. E. 657; Carr v. Frye 225 Mass.
[ Sec. 107 other hand, if the purchase price is paid by the legal grantee, but merely in behalf of a third person, the actual purchaser, and as a loan to the latter, the legal title being taken by the lender as security, a trust results in favor of such third person, and the grantee has at most merely a lien for the sum advanced by him.21 One cannot, it appears, assert a resulting trust in his own favor by reason of his payment of the consideration, if he had the legal title vested in another person merely for the purpose of defrauding creditors,22 or otherwise in contravention of the policy of the law.23
- Mode of payment. In order that a trust may thus arise in favor of the person paying the consideration, it appears to be unnecessary that he should have made payment directly to the vendor, it being quite sufficient that he furnishes to the legal grantee, at or before the time of the conveyance, a part or all of what is given as a consideration therefor. His payment of the price or of part thereof need not involve the delivery of money, but may be by means of the performance of labor,24 the furnishing of ma531, 114 N. E. 745; Gibson v. Foote, 40 Miss. 788; Fike v. Ott, 76 Neb. 439, 107 N. W. 774; Wheeler v. Kirtland, 23 N. J. Eq. 13; Bell v. Edwards, 78 S. C. 490, 59 S. E. 535; Torrey v. Cameron, 73 Tex. 583, 11 S. W. 840; McDevitt v. Frantz, 85 Va. 922, 9 S. E. 282.
21. Rothwell v. Dewees, 2 Black (U. S.) 613; Jordan v. Garner, 101 Ala. 411, 13 So. 678; Ward v. Matthews, 73 Cal. 13, 14 Pac. 604; Brown v. Spencer, 163 Cal. 589, 126 Pac. 493; Pittcock v. Pittcock, 15 Idaho, 426, 98 Pac. 719; Low v. Graff, 80 111. 360; Weekly v. Eilis, 30 Kan. 507, 2 Pac. 96; Dryden v. Hanway, 31 Md. 254, 100 Am. Dec.
61; Herlehy v. Coney, 99 Me. 469, 59 Atl. 952; Kendall v. Mann, 11 Allen (Mass.) 15; Hutchings v. Clerk, 225 Mass. 483, 114 N. E. 746; Bratton v. Rogers, 62 Miss. 281; Hall v. Congdon, 56 N. H. 279.
22. 1 Perry, Trusts, Sec. 165a; Higginbotham v. Boggs, 234 Fed. 253, 148 C. C. A. 158; Sell v. West, 125 Mo. 621, 46 Am. St. Rep. 508, 28 S. W. 969; Ratliff v. Ratliff, 102 Va. 880, 47 S. E. 1007.
23. Taylor v. Benham, 5 How. (U. S.) 270; Leggatt v. Dubois 5 Paige (N. Y.) 114, 28 Am. Dec. 413.
24. Bibb v. Hunter, 79 Ala. 351; Hendricks v. Morgan, 167 Fed.
Terials,25 or ther conveyance of land.26 He may make payment by the release of a personal claim against the vendor,27 and the same end can be effected, it appears, in case his debtor has a claim against the vendor, by his debtor's release thereof for his benefit.28 Likewise the relinquishment of an interest in land may constitute a payment sufficient to support a resulting trust as to a different interest.29 And one may assert a resulting trust in his favor by reason of the fact that he gave his note or other security to the vendor for the price or for a part thereof,29a or even, it has been decided, by reason of the fact that others gave their note therefor on his behalf, he agreeing to see to the payment of the note.29b
- Time of payment. The trust must result at the time of the conveyance of the land, and consequently the fact that, thereafter, a person other than the grantee refunds to the latter what he has paid for the conveyance, or a part thereof, or otherwise relieves him of liability on account of the purchase, does not give rise to a trust.30
106; Gibbons v. Bell, 45 Tex. 417; White v. Sheldon, 4 Nev. 280; Aborn v. Searles, 18 R. I. 357, 27 Atl. 796.
25. Dana v. Dana, 154 Mass. 491, 28 N. E. 905.
26. Moultrie v. Wright, 154 Cal. 520, 98 Pac. 257.
27. Donlen v. Bradley, 119 ill. 412, 10 N. E. 11; Fay v. Fay, 50 N. J. Eq. 260, 24 Atl. 1036; Gay-nor v. Quinn, 212 Pa. 362, 61 Atl. 944.
28. Garten v. Trobridge, 80 Kan. 720, 104 Pac. 1067.
29. Butler v. Carpenter, 163 Mo. 597, 63 S. W. 823. So when, in the course of partition of land, in which a married woman has an undivided interest, a conveyance is made in severalty to her husR. P.-26 band, a resulting trust in her favor would ordinarilly be recognized. Condit v. Bigalow, 64 N. J. Eq. 504, 54 Atl. 160; Weeks v. Haas, 3 Watts & S. (Pa.) 520, 39 Am. Dec. 39.
29a. McGovern v. Knox, 21 Ohio St. 547; Williams v. Wager, 64 Vt. 326, 24 Atl. 765.
29b. Lounsberry v. Purdy, 16 Barb. (N. Y.) 376; McGovern v. Knox, 21 Ohio, St. 547; Morey v. Herrick, 18 Pa. 123; Crowley v. Crowley, 72 N. H. 241, 56 Atl. 190; Gray v. Jordan, 87 Me. 140, 32 Atl. 793; Davis v. Downer 210 Mass. 573, 97 N. E. 90. See Skahen v. Irving, 206 111. 597, 69 N. E. 510.
30. Ducie v. Ford, 138 U. S. 587, 34 L. Ed. 1091; Whaley v. Whaley, 71 Ala. 159; Guin v. Guin, not conclusive, and it may be rebutted by evidence of an intention that the wife or child shall hold in trust.39 Such a trust, however, in favor of the husband or parent, in so far as it is based on a declaration of intention to create a trust, appears to be in its nature an express trust,40 and accordingly in some states evidence of an oral declaration of trust in favor of the husband or parent has been regarded as excluded by the Statute of Frauds.41 In other jurisdictions the view appears to have been taken that the oral decimation of trust serves merely to rebut the presumption of a gift or advancement, and that this having been effected, the payment of the consideration gives rise to a resulting trust, just as if the parties concerned were strangers one to another.42
- Consideration paid by several. If the purchase price is paid by two or more persons, and the land is conveyed to one of them, or to a third person, a trust ordinarily results to any one of them, other than the grantee, in proportion to the part of the price paid by him.31 This occurs, however, it has been frequently stated, only when the payment is distinctly made for a specific interest in the land,32 and sometimes it is said that the payment by one, in order that there may be a resulting trust in his favor, must be of an aliquot part of the total price.33 The latter requirement appears to be meaningless, any part being an aliquot part for the purpose of giving a resulting trust.34 The former requirement appears to mean that if, for instance, one pays one-half of the price, a trust arises in his favor only if at the time of the payment it was agreed that he should have a half interest, a resulting trust in favor of one paying part of the price being thus, as it were, made conditional upon an attempt to create in his favor an express trust. Why this should he so has not been satisfactorily explained, and, as a matter of fact, the courts constantly ignore any such requirement.35 A resulting trust might well, it is submitted, be regarded as arising pro tanto on payment of part, subject only to the requirement that the amount of such payment, as compared with the whole purchase price, be made clearly to appear.36