Fickett v. Durham , 109 Mass. 419 ( 1872 )

Ames, J.

“ There is no doubt of the correctness of the doctrine, that, where the purchase money is paid by one person and the conveyance taken by another, there is a resulting trust ere •?ted by implication of law in favor of the former. And where a part of the purchase money is paid by one, and the whole title is taken by the other, a resulting trust pro tanto may in like manner, under some circumstances, be created.” McGowan v McGowan, 14 Gray, 119. Livermore v. Aldrich, 5 Cush. 431. The ordinary case of trusts of this character is, where the pur chase money is paid by one party and the conveyance is made to another. “ The whole foundation of the trust is the payment of the money, and that must be clearly proved. If, therefore, the party who sets up a resulting trust made no payment, he cannot be permitted to show by paroi proof that the purchase was made for his benefit or on his account.” Botsford v. Burr, 2 Johns. Ch. 405, 409. He may show that, although not paid by his own hand, it was substantially his money, by proof that the defendant who made the payment had agreed to lend him the money, to be repaid at an agreed time with interest, and to hold the title in the mean time as security. Page v. Page, 8 N. H. 187. But. this has been said to be a dangerous species of evidence, and the payment by the party setting up such a trust is required to be clearly proved. Getman v. Getman, 1 Barb. Ch. 499. Kendall v. Mann, 11 Allen, 15. It must clearly appear that it was the plaintiff’s money when paid. Davis v. Wetherell, 11 Allen, 19.

We think that the purchase of the 61,000 acre tract cannot be said to have been made in whole or in part with the plaintiff’s money, or to have been paid for with his funds. On the contrary, the defendant appears to have made what may be called a contract of barter, and to have paid for the tract by exchanging for it certain lands of his own in Chelsea, and by assuming the payment of a mortgage to which it was subject, in this way making up the sum of $13,000, which was nearly or quite equal to the agreed price. Without a payment from the plaintiff’s own money, or what is equivalent to a payment from his own money, there can be no such resulting trust in his favor. The most that can be said is, that the plaintiff, having made use of certain other real estate of his own in another transaction, in such a manner as to bring the defendant in his debt to the amount of $3000, had a right to charge him with that sum in their proposed subsequent operations, and that it was so agreed between them. The law on this point is well stated by Mr. Perry in his recent work on Trusts, § 133, in those words: “ The trust must result, if at all, at the instant the deed is taken and the legal title vests in the grantee. No oral agreements and no payments, before or after the title is taken, will «reate a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from the transaction.” The defendant buys the estate with his own funds and apon his own credit, and although it may be that ex cequo et bona he ought to allow the plaintiff to share in the advantages of the purchase, we think the court cannot compel him to do so, upon this bill, without exceeding its lawful jurisdiction. The fact that the defendant was indebted to the plaintiff in the sum of $3000, and had promised to pay him by a conveyance of an undivided share of a tract of land which was to be purchased, or had promised to purchase it on their joint account, would not be enough to make out a case in which it could be said that the plaintiff’s money was used in the purchase, and that he was substantially a purchaser. The refusal of the defendant to do as he had agreed is not enough to create a resulting trust. 2 Washb. Real Prop. (3d ed.) 444.

With regard to the point taken, that there has been a sufficient part performance by the plaintiff to take the oral contract out of the statute of frauds, we do not see any ground upon which it can be maintained. There was no such connection between the two purchases as to make them essentially one transaction, and no acts done by the plaintiff in relation to the purchase from Barnhart can be said to have been done in part execution of the proposed purchase of the large tract from a different proprietor. The visiting of the land, investigation of title and payment of certain preliminary charges, were merely preparatory to the alleged agreement, and not in execution of it.

We think that the testimony offered does not make out a trust by implication of law, or take the case out of the statute of frauds, and we must therefore order the

Bill dismissed, with coats.