Where, upon the purchase of land, the deed is taken in the name of one person while the consideration money is paid by another, such fact may be proved by parol evidence, and being established, the law implies a trust or use in favor of him who advances the money. Scoby v. Blanchard,3 N.H. 170; Pritchard v. Brown, 4 N.H. 397; Page v. Page, 8 N.H. 187; Gore v. Lawrence, 26 N.H. 484, 499; Farrington v. Barr, 36 N.H. 86; Moore v. Moore, 38 N.H. 382, 387, 388; Hutchins v. Heywood, 50 N.H. 491; Ferrin v. Errol, 59 N.H. 234; Osgood v. Eaton, 69. N.H. 512; Fellows v. Ripley,69 N.H. 410.
There was evidence to warrant the superior court in finding that, while the deed in the present case was taken in the name of the wife, the consideration was paid by the husband. But it is contended by the defendant that when the purchase price is paid by a husband and the deed is taken in the name of his wife, as in the present case, there is a presumption that the transaction was intended as a gift, and that under such circumstances the law will not imply a trust or use. In support of this contention, Dickinson v. Davis, 43 N.H. 647, is cited. That case decides merely that there is a presumption under such circumstances that the transaction was intended as a gift. But, as there said, the presumption is only prima facie. It may be rebutted by parol evidence showing that it was not the intention to make a gift, and thereupon a trust or use arises as effectually as though the transaction had been between strangers. Fellows v. Ripley, 69 N.H. 410; Price v. Kane, 112. Mo. 412, 418; McClintock v. Loisseau, 31 W. Va. 865, 869; Bisp. Eq. (6th ed.) 135; Beach Tr, s. 160. It is found as a fact in this case that it was not the intention to make a gift — that neither the husband nor the wife so understood. If exceptionable, which does not appear, no exception was taken to the evidence upon which this finding was based; and as the record
stands, there is no warrant for saying that the evidence did not justify the finding. The facts found warrant the conclusion that the wife took the deed to the use of the plaintiff. The statute of uses executes the use and vests the legal estate in the plaintiff. Hutchins v. Heywood, 50 N.H. 491; Fellows v. Ripley, 69 N.H. 410.
The question of laches, so far as it is one of fact, would seem to be disposed of by the decree, which presupposes a finding against that contention. Page v. Whidden, 59 N.H. 507, 511, 12 Enc. Pl. Pr. 839, 840. Moreover, the defendants are here claiming through the wife. As against the plaintiff she had no title, and the defendants stand no better than she did. Ferrin v. Errol, 59 N.H. 234.
Exception overruled.
All concurred.