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the ground of bad faith. Bunner v. Storm, 1 Sandf. Ch., 360; Champlin v. Champlin, 3 Edw. Ch., 577.

When

The bid of Sloan was a liberal one. The property could, doubtless, have been bought in for much less. That bid and the cancellation of the entire debt were in consistency with the fair dealing which characterized the conduct of the mortgagees in all their transactions with the other parties. There is no foundation for the imputation that Bynum and Grier were themselves the purchasers. They had no authority to give credit for any part of the purchase money. It was their duty to sell wholly for cash. They were authorized to sell without the intervention of a court of equity. Demarest v. Wynkoop, 3 Johns. Ch., 134. The property when sold under the mortgage of Hovey was hastening to decay. When he bought it rented for $5,000 per year. Sloan bought its condition was such that it could be rented for only $500. When this bill was filed nearly eight years had elapsed since the sale was made to Sloan. Making allowance for the difficulty of intercourse between the north and the south during the war, there was acquiescence, express and implied, for three years after the war ceased. This, if not conclusive, weighs heavily against the complainant. We see no reason to disturb the decree. This conclusion has rendered it unnecessary to consider so much of the record as relates to R. R. Bridgers and his associates, and their vendee, Commodore Wilkes. We have given no thought to that part of the case.

JUSTICES MILLER, FIELD and STRONG were absent.

Decree affirmed.

§ 454. How created. If a trustee purchase lands with the trust funds, and take the conveyance in his own name, in equity the land is held as a resulting trust. Piatt v. Oliver, 2 McL., 267.

§ 455. A court of equity converts him who meddles with the property of a minor into a trustee for such infant, and a trustee cannot buy an outstanding legal title to the prejudice of his cestui que trust. Lenox v. Notrebe, Hemp., 225.

§ 456. Where the money or assets of another are used by a person in purchasing property in his own name a resulting trust arises in favor of him whose means were used in making the purchase. Friedlander v. Johnson, 2 Woods, 675.

§ 457. To raise a resulting trust the alleged trustee must have used the money or credit of the cestui que trust. Tufts v. Tufts, 3 Woodb. & M., 456.

§ 458. Where property has been assigned in trust to pay a judgment against the assignors a trust is created by implication of law which a court of equity will execute, but where the judgment creditors are not a party to the transfer their rights do not attach till they take some steps to affirm the trust, and a disposition of property by the assignees with the consent of the assignors before such affirmance is valid. United States v. Hoyt,* 1 Blatch., 332. $459. In equity, where there is a joint tenancy in a mortgage, the surviving mortgagee will be held a trustee for the representatives of the deceased co-mortgagee. Randall v. Phillips, 3 Mason, 378.

§ 460. In a contest between two litigants respecting a sum awarded by commissioners it is not necessary to make all the other claimants under the convention parties to the suit. The party who receives the sum awarded for the whole claim is a trustee for such as may be entitled to participate therein. Dutilh v. Coursault, 5 Cr. C. C., 349.

§ 461. Whenever property is acquired by fraud, or under such circumstances as to render it inequitable for the holder of the legal title to retain it, a court of equity will convert him into a trustee of the party actually entitled to its beneficial enjoyment. Hardy v. Harbin, 4 Saw., 536; 4 id., 603.

§ 462. A creditor who holds and has been paid a debt by an executor after the same was barred by the statute of limitations in favor of dead men's estates, becomes a trustee for the parties to whom the money so wrongfully paid rightfully belongs. Pullam v. Pullam, 10 Fed. R., 53.

§ 463, The law never implies and the court never presumes a trust, except in cases of abso. lute necessity. United States v. Union Pacific Railroad Co., 11 Blatch., 385.

§ 464. Trusts by implication are usually implied only in favor of third parties, the presumed

objects of the donor's bounty, and not in favor of the donor himself. In the latter case the presumption is much slighter than in the former. Ibid.

§ 465. Parties who have no interest in or right to land cannot by any act of theirs impress or fasten a trust upon it in favor of any one. Lamb v. Vaughn, 2 Saw., 161.

§ 466. There is no resulting trust to the heir when all the bequests in the will take effect. Rinehart v. Harrison, Bald., 177.

§ 467. There can be no resulting trust in favor of a third person, when the deed is taken in the name of the principal purchaser, and the money is not paid by the asserted cestui que trust. Rhodes v. Selin, 4 Wash., 715.

§ 468. By purchase of trust property with notice.— Persons who receive trust property from a trustee in breach of his trust become themselves trustees if they have notice of the trust. In re Jordan, 2 Fed. R., 319.

$469. Persons who come into possession of trust property with notice of the trust are considered as trustees, and bound with respect to that special property to the execution of the trust. Mechanics' Bank of Alexandria v. Seton, 1 Pet., 299.

$470. When property of any description is transferred from one to another, which is affected by a trust, and the person to whom it is transferred has notice of that fact, the trust will follow it into his hands. If the trust property is money, the liability does not attach to the possession of the pieces of coin, but to the possession of the fund. United States v. The Inhabitants of Waterborough,* Dav., 154.

$ 471. Where an agent employed to procure a vessel to be built in his own name, and eventually transfer the title to his employer, fraudulently transfers the title to a stranger, with notice, the transaction creates a trust properly cognizable in equity. Scudder v. Calais Steamboat Co.,* 10 Law Rep. (N. S.), 498.

§ 472. A deed of lands to a purchaser without notice, by a person holding a deed thereto duly recorded, cuts off any claim to such lands founded on a resulting trust. Daggs v. Ewell, 3 Woods, 344.

§ 473. Parties who, knowing a breach of trust has been committed, buy the trust fund, do so at their peril. Kitchen v. Bedford, 13 Wall., 413.

§ 474. A purchaser from a fraudulent vendee, with notice of the rights of the original vendor, may, at the election of the latter, be charged as trustee, but to the extent only of the interest which such vendor had, and if the proof shows that no title was vested in such vendor, he cannot subject to his use any title the purchaser derived from another source. Rogers v. Marshall, 3 McC., 76.

§ 475. Between principal and agent. If an agent locate land for himself which he ought to locate for his principal he is in equity a trustee for his principal. Massie v. Watts, 6 Cr., 148.

§ 476. An agent, when contracting for his principal, cannot stipulate for any private collateral benefit for himself. If he does he will be deemed to take and hold it in trust for his principal. The rule applies to all persons standing in a fiduciary relation to those for whom they are acting. Garrow v. Davis,* 10 N. Y. Leg. Obs., 225.

§ 477. Where an agent, whose duty it is to pay taxes on the land of his principal, and who has agreed to advance money for that purpose, neglects to do so, permits the land to be sold and himself becomes the purchaser at the tax sale, such purchase must be held to be in trust for the benefit of the principal on repayment of the sum advanced by the agent. Rothwell v. Dewees, 2 Black, 613.

§ 478. If a person assuming to act as agent in redeeming land sold for taxes take advantage of such act to obtain a title in his own name for the land, and by a subsequent procedure to perfect the title, he is responsible in the character he at first assumed, and will be held to answer to those in whom the title was vested. Schedda v. Sawyer, 4 McL., 181.

§ 479. Where one of several partners purchases property with the funds of the partnership and takes the title in his own name, no trust results in favor of the firm where the purchase money is charged to the partner's individual account and the property is treated by the firm as belonging to the holder of the legal title. Philips v. Crammond,* 2 Wash., 441.

§ 480. At a sale of public lands in a territory an agent who purchased for another must account as trustee to his employer, although the statutes of the territory have abolished all resulting trusts. Irvine v. Marshall, 20 How., 558.

§ 481. An attorney purchasing any property of his client connected with the litigation in which he is engaged can hold it only as trustee for his client. Stockton v. Ford, 1 How., 232. § 482. Between partners and persons having joint interests.- Where the management of a partnership business is left exclusively to one member of the firm, who takes complete control, neither consulting nor reporting to the other member, who resides at a long distance from the place where the business is carried on, held, that the relation of the partners in such a case becomes fiduciary, and a sale to the managing partner of the other's interest in

the concern will be set aside if the proofs show that any unfair advantage was taken by the purchasing partner of his superior knowledge. Brooks v. Martin, 2 Wall., 70.

§ 483. A written agreement by two to purchase lands on joint account creates a fiduciary relation between the parties, which neither is at liberty to defeat by a purchase on his sole account, and such a purchase will be in trust for the joint account. Flagg v. Mann, 2 Sumn., 487.

§ 484. Where one partner sells to another, who binds himself to appropriate the goods on hand to the payment of the debts of the firm, the assignee becomes a trustee to the creditors and the late partner for the faithful performance of the trust. Sedam v. Williams, 4 McL., 51.

§ 485. If parties are interested together by mutual agreement, and a purchase is made agreeably thereto, neither party can exclude the other from what was intended to be for the common benefit, and any private benefit touching the common right which is secured by either party will turn him into a trustee for the benefit of both. Flagg v. Mann, 2 Sumn., 487.

§ 486. Where land purchased by one partner in his own name is occupied by both partners for the benefit of the firm, and is paid for out of partnership funds, a resulting trust is established in the partner making the purchase in favor of the firm. Scruggs v. Russell, McCahon, 39. $ 487. S. gave a deed of release of his interest as a tenant in common in certain premises to B.; at the time of this conveyance W. was in possession and seizin of the premises, claiming them in his own right, by virtue of a purchase under a tax sale. W. was one of the tenants in common of the premises and was the agent of S. and the other proprietors. Held, that the purchase of W. must be deemed a trust for the benefit of S. and his grantee, B., to the extent ⚫ of their interests; that he ought to be decreed to convey the legal title to the premises, after being satisfied of all the just claims which he had against them for taxes, for the purchase money laid out in the tax sale, for his expenditures and improvements upon them, and also for his reasonable services as agent in the premises, deducting all sums of money received by him in the premises for "stumpage" or otherwise. Baker v. Whiting, 3 Sumn., 476.

§ 488. Between buyer and seller. An instrument may have the distinguishing characteristics of a contract and be open to objections which prevent its enforcement as such; still, if it possess the essential elements of a trust, the trust may be enforced. Where A. entered into a contract with B., by which the latter agreed to buy certain land and convey the same to A., and, A. having paid a portion of the contract price, B. purchased the land as agreed, but refused to convey to A., held that, even though, as urged by counsel, a decree for specific performance of the contract could not be rendered, on account of objections raised, there was nevertheless an implied trust in favor of A. which the court had the power to enforce. Fackler v. Ford, McCahon, 21.

§ 489. The view which courts of equity take of agreements to sell land is that the seller becomes a trustee for the purchaser. Lane v. Ludlow, 2 Paine, 591.

§ 490. The vendor of an estate who has received the purchase money, but retains the legal title, is a mere trustee for his vendee, and can avail himself of no act prejudicial to the trust. Waddington v. Banks, 1 Marsh., 97.

§ 491. Where land is to be conveyed for a consideration which is to be afterwards ascertained by the price at which the grantee may sell it, there arises a resulting trust to the grantor until the sale is made, and the grantee becomes a trustee, subject to all the equitable rules which would have bound him had the deed in express terms empowered him to sell for the use of the grantor. Prevost v. Gratz,* Pet. C. C., 364.

§ 492. In reforming a contract for the sale of lands equity treats the purchaser as a trustee for the vendor, because he holds under the vendor; and acts done to benefit the title by the vendor when in possession of the land inure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed was derived. The vendor and vendee shared in the relation of landlord and tenant. The vendee cannot disavow the vendor's title. Galloway v. Finley, 12 Pet., 264.

§ 493. Between husband and wife. Where the consideration for a deed to a husband is property belonging to the wife, there is a resulting trust in favor of the wife, and a conveyance by her will be upheld in the absence of evidence of the wife's assent to taking of the title in the husband's name. Nicklin v. Wythe,* 2 Saw., 535.

§ 494. The husband of a tenant in common who buys an outstanding equity in the land takes it as trustee for his wife and her tenants. Rothwell v. Dewees, 2 Black, 613.

§ 495. A husband who, having executed a trust deed for the benefit of his wife, receives from her the rents, profits, etc., of the trust property at his suggestion, and upon his agreement to invest the several amounts so received by her from the trustees for her benefit and that of her children, becomes thereby the trustee of the wife. Walker v. Beal, 3 Cliff., 155. § 496. Purchase money paid by one, title taken by another.- Where the purchase money is paid by one, and the title taken by another, to raise a resulting trust in favor of the former

the entire purchase money must have been paid by him; or if a part only be paid, such part must be paid for some aliquot part of the property, as a fourth, a third, or a moiety, and there must be no uncertainty as to the proportion of the property to which the trust extends. And such trust must arise at the time of the purchase — it cannot arise by after-advances. In re Wood, 5 Fed. R., 443. $497. proof.- Parol evidence is admissible to prove a resulting trust in relation to real estate by showing that funds of one person were used by another in purchasing land in his own name. Scruggs v. Russell, McCahon, 39.

$498. An agreement was made for the purchase of lands, and the following paper was given: “Ellsworth, December 15, 1834. Received of B. and C. $1,000, to be accounted for if they shall furnish me satisfactory security for certain lands on the N. river, say one hundred and nineteen thousand acres for $113,000, on or before Friday morning next, otherwise to be forfeited. O. P." A parol agreement having been subsequently substituted therefor, by which the said land was transferred by deed to other persons than those therein mentioned, and a bill being brought by C. to recover a certain part from the grantees as a resulting trust to him, it was held that the written memorandum only created a presumption of a resulting trust, which could be rebutted by proof; and proof being given that C. did not advance any portion of the purchase money, as stated in the memorandum, he was not entitled to a resulting trust, and the contract was within the statute of frauds. Clark v. Burnham, 2 Story, 1.

$499. Legal title taken with notice of prior equitable title. He who takes a legal title with notice of a prior equitable title is trustee for him who holds the equitable title, but the legal title obtained by a purchaser under the former, although with notice of the prior equitable title, will not be disturbed, if the purchaser was encouraged by the latter to pay the purchase money. Kurtz v. Bank of Columbia, 2 Cr. C. C., 701.

§ 500. Not within the statute of frauds.—It seems that the exception in the statute of frauds in England and Massachusetts as to resulting trusts is merely affirmative of the general law, and does not create a saving of resulting trusts, which would otherwise have been cut off, unless in writing. Accordingly, in Rhode Island, where the statute of frauds contains no such exception, resulting trusts are on the same footing as in England and Massachusetts. Hoxie v. Carr, 1 Sumn., 173.

$501. Where an agent of a mortgagee purchases the property on foreclosure sale for the benefit of the mortgagor he holds the legal title in trust for his principal, and such trust is not within the statute of frauds. Especially is this true when the purchaser is attorney of the mortgagors in the foreclosure suit. Manning v. Hayden,* 5 Saw., 360.

§ 502. If a joint purchase be made in the name of one or two co-purchasers, parol evidence is admissible to prove the fact, and the co-purchaser in whose name the property stands is held to be a trustee of a moiety for the other. Such a case is not within the statute of frauds and is a resulting trust. Powell v. The Monson & Brimfield Mfg. Co., 3 Mason, 347.

§ 503. Miscellaneous.- Under the jurisprudence of Louisiana, a trustee holding trust funds, and against whom there stand judicial mortgages, cannot invest the trust funds in real estate in his own name and then subject it to the lien of the judicial mortgages so recorded and thus pay off such mortgages. The judgment creditor cannot, in such case, be protected against the resulting trust arising in favor of the party whose funds had been used by the judgment debtor in the purchase of the real estate. Flanders v. Thompson, 3 Woods, 9. § 504. Express trusts are abolished in Louisiana by the law of that state, but that implied trust which is the creature of equity has not been abrogated. Gaines v. Chew, 2 How., 619. § 505. By the decision of the supreme court of Ohio, the act of March 14, 1853, “declaring the effect of assignments to trustees, in contemplation of insolvency, and the statute of 1838, of the same import, do not affect assignments or transfers made for the sole benefit of the assignees or transferees; but if made trustees for other parties, the statute applies and the property is held for the equal benefit of all the creditors." Held, in accordance with the above ruling, that no trust can be implied from the fact that an assignment has been made by an insolvent debtor for the purpose of indemnifying a surety bound on account of such debtor, provided that the facts indicate no intention other than the bona fide indemnification of the surety; nor if the property assigned be more than enough to indemnify such surety, is he a trustee within the meaning of the above statute, although he may be liable to the creditors for the surplus after paying the debts for which he was contingently bound. Coolidge v. Dubarrow, 1 Bond, 222.

§ 506. Where congress grants land to a railway corporation to aid in the construction and operation of its road, certain privileges as to the transportation of the United States troops and mails being reserved to the government, the position of the latter is that of a donor, and not that of a creditor or a cestui que trust, unless such position be directly specified. The rights of the government are those which are expressly reserved and do not arise from an implied trust. United States v. Union Pacific Railroad Co., 11 Blatch., 385.

§ 507. A testator devised as follows: "I give to my wife, her heirs and assigns, all my real and personal estate, excepting my outstanding debts, which I order my said wife, whom I appoint my executor, to collect and give three persons that I shall hereafter direct her to give the same to." The testatrix died without naming the three persons and giving any direction. The wife collected the debts and invested them in securities, for one-half of which the next of kin of the testator brought his suit. Held, that these outstanding debts did not pass by will to the wife as residuary legatee, or devisee, or executrix, or as trustee, by implication; but they are to be distributed according to the statute of distributions of the state. Wisner v. Barnet, 4 Wash., 631.

§ 508. Where a party is sought to be held as trustee on the ground of fraud, the complainant must show honesty and fair dealing on his part. Where a partnership firm engaged in the produce business, owning a mortgage on certain real estate, being desirous to itself purchase under the mortgage, intrusted the management of the affair to one of its members, who made arrangements, without the knowledge of his partners, with a third person, to buy the mortgaged property, giving him, the partner managing the business, an interest in it, held, that the legal obligation of the intrusted partner being to secure the satisfaction of the mortgage, so that that was done and the full amount of the mortgage debt accounted for by the partner to the firm, no trust relation could be established between such partner and the firm by reason of the interest acquired by him in the mortgaged premises by his arrangement with the purchaser, all the partners having been engaged in an elaborate scheme to acquire the said property at a price far below its real value, entering, through collusion with the mortgagor, a judgment for a nominal amount in order to deceive and bluff off other creditors. Wheeler v. Sage, 1 Wall., 518.

§ 509. B., as agent for the owners, contracted to sell a large quantity of land in Maine, which contract was assigned by the vendee, until it came through mesne assignments into the hands of M. and others. Payments were made from time to time on account; but at length, in consequence of a failure to make the payments stipulated in the contract, and by virtue of a clause contained in it, the contract became void. In this state of things M. employed P. to ascertain from B. the lowest price he would take for the land, and then to sell to others for the highest price he could get. P. sold and assigned the contract to D. for $1,050. Upon the theory that P. and D. entered into a fraudulent combination, still, M. and others are not entitled to demand that a court of equity should consider D. as a trustee of the lands for their use. They had no interest in them, legal or equitable, nor anything but a good-will, which alone was the subject-matter of the fraud, if there was any. Garrow v. Davis, 15 How., 272:

USURY.

See INTEREST AND USURY.

UTAH.

See STATES.

VARIANCE.

See EVIDENCE; PLEADING.

VENDOR AND VENDEE.

See LAND.

VENDOR'S LIEN.

See LAND.

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