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 .
Before the Statute of Uses, as previously stated, a use in favor of the grantor of land was frequently recognized by the courts without any express declaration thereof, by force of a presumption of intention to that effect.3 Such a use was ordinarily referred to as a "resulting" use, meaning a use which springs or leaps back,4 and so we speak at the present day of a
(12th Ed.) 240 et seq. Underhill, Trusts, 197. Re Townsend's Contract (1895), ch. 716.
99. Bagshaw v. Spencer, 1 Ves. 144; Doe d. Shelley v. Edlin, 4 Ad. & El. 582; Poad v. Watson. 6 Q. B. 606, 618; Chamberlain v. Thompson, 10 Conn. 244; Robinson v. Pierce, 118 Ala. 273, 45 L. R. A. 66, 72 Am. St. Rep. 160, 24 So. 984; Spengler v. Kuhn, 212 111. 186, 72 N. E. 214; Spessard v. Rohrer, 9 Gill. 262; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065; Welch v. Allen, 21 Wend, (N. Y.) 147; Blount v. Walker, 31 S. C. 13, 9 S.
E. 804, 2 Jarman, Wills. 1143. Contra, Moffew v. S. P. & S. R. Co., 107 Cal. 587, 40 Pac. 371
1. See post Sec. 106 (c) note 34.
2. Doe d. Shelley v. Edlin, 4 Ad. & El. 582; Doe d. Cadogan v. Ewart, 7 Ad. & El. 636: Doe v. Davies, 1 Q. B. 430, 438; Creaton v. Creaton, 3 Sm. & Gif. 386. And see, apparently to this effect, Mc-Fall v. Kirkpatrick, 236 111. 281, 86 N. E. 139; Gadsden v. Canpede-ville, 3 Rich. L. 467.
3. Ante Sec. 97, note 19.
4. From the Latin resultare.
By the express provision of the Statute of Frauds, the requirement of written proof of a trust in land does not apply to cases in which "a trust or confidence shall or may arise or result by the implication or construction of law," and this language has always been regarded as allowing trusts in land, such as we term "resulting," to be established by oral evidence without regard to the statute. It is to be noted, however, that these trusts do not arise by implication of law in the sense that they are imposed by the courts regardless of intention. They are in theory based on intention to the same extent as express trusts, but the intention, instead of being expressed, is inferred by the court from particular circumstances, that is, the court indulges in a presumption of fact that there was an intention to create a trust. The above provision of the Statute of Frauds declares in effect that, while a trust in land must ordinarily be evidenced by writing, oral evidence is admissible to show the circumstances from which the courts are in the habit of inferring an intention to create a trust in favor of a particular person.5
- (b) In favor of donor. Analogous to the doctrine which obtained before the Statute of Uses, that on a feoffment without consideration and without the declaration of a use, a use was to be implied in favor of the feoffor,6 is the view, sometimes stated or indicated,7 that in the case of a modern conveyance by deed without a consideration, and without any declaration of a use or trust, a trust is to be implied-that is, results-in favor of the grantor. But by the strong current of authority, in this country at least, there is no implication of a resulting trust upon a conveyance without any consideration.8 Furthermore, it seems to be agreed that, admitting the possibility of a resulting trust to the grantor upon a voluntary conveyance, the declaration in the conveyance of a.
5. See articles by Professor Harlan P. Stone, in 6 Columbia Law Rev. at p. 330 and by Professor Geo. P. Costigan, Jr., in 27 Harv. Law Rev. at p. 450.
Professor Costigan expresses the opinion that there cannot properly be a resulting trust if there was an oral declaration of trust similar to the asserted resulting trust. "An express oral or written promise or trust leaves no room for inference." See 12 Mich. Law Rev. at p. 426; 27 Harv. Law Rev. at p. 458. But is this so? Why should not the intention to create a trust be inferred from payment of the consideration by a person other than the grantee, for instance, even though there was an oral declaration of such intention.
6. Ante, Sec. 97, note 19.
7. There are indications of this view in quite recent English text books, and in some older decisions in that country. Lewin, Trusts (12th Ed.) 164; Williams, Real Prop. (21st Ed.) 184; Sculthorp v. Burgess, 1 Ves. Jr. 92; Duke of Norfolk v. Browne, Prec. Ch. 80; Hayes v. Kingdome, 1 Vern. 33; Childers v. Childers, 1 De Gex & J. 482. See Hart, Law of Trusts 102. And the view has occasionally been advanced in this country See Story, Eq. Jur. Sec. 1197; 2 Pomeroy. Eq. Jur. Sec. 1035.
8. Hill, Trustees, (4th Am. Ed.) 170; 1 Sanders, Uses & Trusts, 365; 1 Perry, Trusts, Sec. 162; Lloyd v. Spillet, 2 Atk. 150; Young v. Peachy, 2 Atk. 256; Patton v. Beecher, 62 Ala. 529; Stevenson v. Crapnell, 114 111. 19, 28 N. E. 379; Moore v. Horsley, 156 111. 36, 40 N. E. 323; Philbrook v. Delano, 29 Me. 410; Groff v. Rohrer, 35 Md. 327; trust or use in favor of the grantee,9 or the acknowledgment therein of the receipt of a consideration,10 rebuts the presumption of intention on which any such implication must be based.
The soundness of the view generally adopted in this country, that no resulting trust is to be recognized in the grantor by reason of the nonpayment, or non-recital of payment, of a consideration, and the failure to declare a use, seems unquestionable. Such facts, in view of the methods of conveyancing here prevalent, furnishes, in most jurisdictions at least, not the slightest ground for the inference of an intention not to transfer the beneficial at the same time as the legal interest.
Where land is voluntarily conveyed or devised to a trustee for a particular purpose, as for the payment of debts, and such purpose does not exhaust the beneficial interest, such interest, so far as unexhausted, is said prima facie to result to the donor or his heirs, and the rule is said to be the same if the declaration of trust purports to dispose of a part only of the beneficial suits in favor of the donor by reason of the insufficiency of the beneficial interest declared, since it involves no active duties on the trustee's part would, on a theory not infrequently asserted,14 be executed by the Statute of Uses, so as to vest a legal reversion or possibility of reverter in the donor or his heirs. In the case of a conveyance to A and his heirs in trust for B for life, without any further limitation, the resulting trust in favor of the grantor, not involving any active duties, might be regarded as executed by the statute, so as to give to the latter a fee simple estate in reversion, taking effect in possession on B's death, and so in the case of a conveyance to A and his heirs in trust for B for life, without any further limitation and without the imposition of any active duties upon A after B's death, the resulting trust in favor of the grantor might be regarded as executed by the statute, with a like result.