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the entire purchase money must have been paid by him; or if a part only be paid, such part

a 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. 0. 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.

S 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 seenis 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 nortgagee 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. Wbere 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 pa er 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 bis 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

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USURY.

See INTEREST AND USURY,

UTAH.

See STATES.

VARIANCE.

See EVIDENCE; PLEADING,

VENDOR AND VENDEE.

See LAND.

VENDOR'S LIEN.

See LAND.

VENUE.

See ACTIONS; PLEADING.

VERDICT.

See CRIMES; PRACTICE.

VERMONT.

See STATES.

VESTED RIGHTS.

See CONSTITUTION AND LAWS.

VIRGINIA.

See STATES.

VISITATION AND SEARCH.

See MARITIME LAW.

VOLUNTARY CONVEYANCES.

See DEBTOR AND CREDITOR; DOMESTIC RELATIONS; FRAUD.

VOLUNTARY PAYMENTS.

See PAYMENT.

VOTERS.

See ELECTIONS.

WAGER OF LAW.

$ 1. The wager of law, if it ever had a legal existence, is now completely abolished under the constitution of the United States preserving the right of trial by jury. Childress v. Emory, 8 Wheat., 642

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SUMMARY Sale or bailment, 1-4, 6.- Presumption as to notice of custom of warehouseman,

8 5. - Receipts. 87; a chattel mortgage, when, S 8; priority of holder in bankruptcy, $ 9; assignment, SS 10–13.

$ 1. Grain may be disposed of by the owner to a warehouseman, or to an elevator or mill proprietor either by sale or bailment. If a specific amount of grain is deposited by the owner, which is not to be changed by the bailee, but retained until called for, when the identical grain is to be restored, it is a case of bailment. McCabe v. McKinstry, $$ 14–18.

$ 2. Where wheat is deposited by the owner to be stored and safely kept, the property remains in the original owner, and no credit is extended to the bailee. But if the wheat is left with the warehouseman with authority to sell it for his own benefit, and upon his promise to pay the value of the wheat or return a like quantity of wheat when demanded, the transaction is in essence a sale. Ibid.

§ 3. An act of the legislature of Minnesota provides “that whenever any grain shall be delivered for storage to any person, association, etc., such delivery shall in all things be deemed and treated as a bailment and not a sale of the property so delivered, notwithstanding such grain may be mingled by such bailee with the grain of other persons, and notwithstanding such grain may be shipped or removed from the warehouse, elevator or other place where the same was stored." The act also authorizes the depositor of grain for storage to demand and receive a receipt therefor; makes it criminal to issue a fraudulent receipt; makes the receipt negotiable and to stand for the grain, so that whoever owns the receipt owns the grain; makes it larceny wilfully to neglect or refuse to deliver the grain, and criminal to sell, dispose of or deliver the grain without the authority of the owner and the surrender of the receipt. These provisions cannot be held to protect the persons who deliver grain to the warehouseman with express authority to sell the same on his own account, and upon an understanding that he is to pay the value of a like quantity of grain or to deliver a like amount upon demand; por to embrace the case of one who leaves wheat with a miller with authority to use it as a part of his current consumable stock, and upon an agreement to pay the owner the value, or to deliver a like quantity when demanded. Ibid.

$ 4. A receipt as follows: “Received of M. five hundred and fifty bushels of No. 1 hard wheat, at his risk in case of fire, and free of storage until sold," is not of such a nature as pecessarily to exclude, under the above act, all parol evidence to show the character of the transaction, and to show by the acts and conduct of the parties that the wheat therein mentioned was bought for the purpose of being manufactured into flour, and was so manufactured with the knowledge and consent of the depositor soon after it was left with the mill owner. The authority to sell must under this act be express, but it need not be in writing. Ibid.

$ 5. Where the invariable and well known course of business at a warehouse was to mingle together all grain of the same grade, whether purchased outright and paid for at the time or received on tickets, specifying the grade and quantity, and which contemplated the future delivery of the like amount of the same grade of grain to the holders of such receipts when they should call for it, or the payment in money of the value of that amount and quality of grain, depositors must be presumed to know that such was the practice of the warehousemen, Rahilly v. Wilson, SS 19-22.

$ 6. Such being the uniform course of business, the contract between the depositor and the warehouseman is not one of bailment proper, but one (mutuum) where the property passes to the mutuary or receiver, and is delivered to him for his own use or consumption, and where he is not bound to return the identical article in its original or altered shape, but property of the same kind and value. In which case it is a sale, the title passes, and the receiver becomes a debtor for the stipulated return. Consequently, where grain is deposited in a warehouse under such circumstances, and the warehouseman, after having disposed of a considerable portion of the grain deposited, becomes bankrupt, the receipt owners are not entitled to share pro rata in the grain remaining in the warehouse, as against the assignee in bankruptcy. Ibid.

$ 7. A receipt for property, in order to be considered a warehouse receipt under the law of Indiana, must comply with all the requirements of the statute. A., desirous of borrowing money of B., converted his storehouse into a public warehouse in the manner provided by law, and having borrowed the money gave as collateral security a warehouse receipt to C., who, as a merely nominal party, indorsed the receipt to B. By the statutes of Indiana a receipt for property stored in any class of warehouses shall be negotiable and transferable by Vol. XXVIII - 43

673

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the indorsement of the receipts which are to be given for the property stored, and the indorsement of the party to whom the receipt is given shall constitute a valid transfer of the property. The statutes further provide that property stored in warehouses of the class to which A.'s belonged shall state distinctly on their face the brand or distinguishing mark of the property. No property was ever stored in A.'s warehouse except his own, for which the receipt in question was given, and which contained vo reference to any brand or mark distin. guishing the property. Held, that such receipt was not a valid warehouse receipt under the statute. Adams v. Merchants' Nat. Bank, SS 23-25.

$ 8. A receipt for property given as security for debts, which is not valid as a warehouse receipt, may be considered as a chattel mortgage, and if not recorded is, in Indiana, void as against creditors. Ibid.

$ 9. When a debtor who has given an invalid warehouse receipt becomes bankrupt the holder of such receipt is not entitled to any priority as a preferred creditor. Ibid.

$ 10. Warehouse receipts are the representation of the property for which they are given, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale. M'Neil v. Hill, SS 26, 27.

$ 11. A warrhouseman who has given a warehouse receipt is estopped to deny in a suit by the assignee of such receipt that he has received the property which it purports to represent and show that the paper was issued as a security for a loan, or as an advance on wheat to be delivered. Ibid.

$ 12. The indorsement and delivery of the receipt of a warehouseman in the course of trade passes the title and right of possession of the property to the party to whom it is so indorsed and delivered. When the indorsement is made the warebousenjan becomes the bailee of the indorsee. Harris v. Bradley, &$ 28-30.

$ 13. A writing as follows: “Received in store for account of B. & W. three thousand sacks of corn," is a valid warehouse receipt, the indorsement of which passes the title of the property for which it was given. In the absence of any statute or usage so requiring, a warehouse receipt need not be in any particular form, or contain the words “or order," or other words to denote its negotiability. Ibid.

[NOTES. — See SS 31-57.]

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STATEMENT OF FACTS.— Plaintiff is assignee of the Winnebago City Mill Company. The action was brought to recover $576.65, received by the defendant from the bankrupt, April 20, 1876, as a fraudulent preference. On May 1, 1876, the mill company filed its petition, and was adjudged a bank rupt on the next day. On March 20, 1876, defendant authorized the mill company's secretary to buy wheat for him, which was done, and a receipt for five hundred and fifty bushels, signed by the mill company, given defendant. The money value of the wheat was paid defendant April 20, 1876. The re covery is sought respecting this payment. There was a trial by jury, and a judgment for plaintiff.

$ 14. Sales and bailments of grain in warehouses discussed. Opinion by Dillon, J.

Grain may be disposed of by the owner to a warehouseman or to an elevator or mill proprietor either by sale or bailment. In the former the title passes; in the latter it remains with the owner. It is sometimes difficult to determine whether a particular transaction is a sale or bailment. If a specific amount of grain is deposited by the owner, which is not to be changed by the bailee, but retained until called for, when the identical grain is to be restored, this is, of course, a plain case of bailment. Under the Minnesota statute of March 3, 1876, however it might be in the absence of such an enactment, a specific amount of grain deposited for storage does not cease to be a bailment, and does not become a sale, because it is mingled by the warehouseman or elevator or mill proprietor with the grain of other persons, since the

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