Polynesian., 1862-09-13

II Flckf Wv men the trust proved, parole evil
dence is admissible to define its nature and operation
Bran Ch. 472
1t is often very difficult question to determine what
| facts will create trust by operation of law.-Pem-
broke rs Allenston, l Foster, l07; 13 John, 1853;
jackson rs. Mills; Boyd IS. Mclean, l Johns, Ch.
272.
The statute of frauds declares that call declarations
or creations of trusts and condolences of any lands &c.
shall be manifested and proved by writing signed
by the party. who is or shall be by law enabled to
declare such trust else they shall be utterly void
The statute, however, excepts the when any con-
veyance shall be made of any lands &C., by which q
trust confidence shall arise result, by implication
or construction Of law.
In the of Botsf0rd us. Burr, John, Ch R.
4OS, Chancellor Kent says that such resulting trust
may be established by parole proof, and the difficulty
in all this class of cases is whether the facts make out
resulting trust. In all cases, where the money is
paid by one person. and the deed taken in the of
another, resulting trust arises but if the party did
not pay the money he cannot be permitted to prove
that the purchase made for his benefit or on his
account. The trust may be established by parole, al
though by the deed an acknowledgment is made that
the money paid by the nominal grantee.-Foot Us.
Calvin, Jnhns, 2l6; Suthrie Gardner, 4l4-l9
Wendall; LOwusburg Purdey. 16 Barber, 376;
Peabody Us. Turbil Gushing. 2S6 Lynch Cox,
II Johns, 265; Buck Pike, Fairfield, 9. % /;
Baker Vining, 30 Maine. 12l, l25; Smith o.
Burnham, Sumner. 435, 438
regard it settled by the authorities that resulting
trust may be established by parole evidence although
the grantee denies the trust in his but the evil
dence must be full. clear and satisfctory.-3 Story
lSl; 2 StOry's Eq., 6S Hill on Trustees, 81 lst
Leading Cases in Equity, 274-aOte and authorizes
there cited.
The cestl que trust regarded in Court of Equity
the real owner for the beneficial interest vests in
him. So that if the respondent had purchased the es
tate with the knowledge of the trust, the conveyance
would be subject to it He has right in equity to
dispose of the estate, and any disposition made by him
is binding on the trustee.-Root Blake, IA Pick,
27l.
AS early the time of Lord Hardwicke in the case
of Lloyd Spilot Atk. R.. l5O, the principle Of
resulting trust recognized arising by operation Of
law, where an estate purchased by person and
the consideration was paid by another. He who pays
the consideration is regarded in equity the
He went farther in the of Willis, Atk ~, and
of opinion that parole evidence might be admitted
to show the trust from the poor circumstances Of the
pretended owner of the real inheritance which
made it impossible for him to be purchaser-Linch
Lnch, 10 Vesey, 5lS. And this doctrine is equally
applicable to personal, well real estate. 10 the
case Of Dyer Dyer, Cox 92, Lord Chief Justice
Baron Eyre says, that the clear result of all the
cases, without single ptOn is that the trust of
legal estate, whether freehold copyhOld leasehold
whether taken in the of the purchaser and others
jointly in the of others without that of the
purchaser; whether in one name several; whether
jointly succession, results to the who advances
the purchase money and it goes strict analogy to
the rule Of common law, that where feofmen IS made
without consideration. the results to the feoffor'
MIR. Justice Story says, that this principle re-
cnsnized very short time after the passing of the
statute of frauds of 29 Charles 3D. in case
in Ventrs, 36l, and that the doctrine Of that case
has been departed from, but has been recognized
in great variety of decisions The question whether
parole evidence Is admissible to establish the Of
paying the purchase money, has been involved in doubt
But, Justice Story and Chancellor Kent after q very
thorough examination of the subject have decided that
parole evidence is admissible ascertain the trust
The same doctrine is maintained by the English
thOrities. The trust arises upon the ownership and
payment Of the money and not upon contract enter
ed into the part of the -Pritchard Us Brown
~ II. Rep 40l; Kent, 3O5; Story's Eq. sI2Ol.
Chancellor Kent says. that a trust is merely what
was before the statute of Ii is interest
resting in conscience and equity and the rules
apply to trusts in chancery which formerly applied
uses, and in exercising its jurisdiction executory
trusts the Court of Chancey is bound by the tech
ncal rules OF law but takes wider range in favor of
the interest of the party. Fisher Fields, IA John,
K. sos.
A difficult question than one Of Law arises on
the sufcency of the evidence establish the trust as
alleged by the complainant. careful analysis Of the
testimony is necessary to form opinion upon this
very important point. Mr. Vincent testi6es that in
lS48 he loaned the complainant S5OO0 who gave him
security the lease which he then held Of the Puuloa
salt works and the salt there manufactured. The COM
painant to California in IS4S, and on his return
in lS49, he purchased the title of the estate and he
conveyed 1t to him to secure the original loan and
further advance. making the amount $4,000. And it
agr ed the time that he to have third Of
the profits for his superntendance the complainant
onethrd, and compliments wife oue-third and il
distinctly understood that on the payment Of the
$4,000 and interest he was to re convey the estate'
He says further, 1--WE made settlement in 1853 and
received full payment of omplansnts Indebtedness
and then desired to reconvey the estate I received
one-thrj of the profits for managing the estate. I
considered the estate sacred and made provision to
protect the complainant in my will thought the es-
tate worth four times the amount be owed me. After
my settlement with the complainant, the title remained
in me for about one year and half, and expressed
wish 10 complainant to re convey the estate 20 him.
and the complainant replied 'Oh, let it remain I
mentioned the same thing to him again and again. and
his answer was always the thought the estate
had better remain in my hands, as complainant at
that time Incorporate, and sometimes his conduct
imprudent." Witness says he had rescued him from
many troubles that he felt the responsibility of the
trust, and desired TO get rid OF IT, However the title
remained in him till the arrival in this country of the
respondent and Isaac then said to him after introduce
ing his brother: will take the deed Of the land.
and in preparing the deed, insert my brothers name
in place of my own, and set the in the deed &C
$4,000. He applied to Judge Harris, and he drew
the deed for the land and the mortgage and three notes
of $4,000 each at 8, l2 and - months The notes and
mortgage, am under the Impression, made for
the purpose of binding Mr. Harris, the object being to
put Mr.. Daniel Montgomery in trus and lead people
TO believe he owned the estate He goes to say, M
think | delivered them to the respondent. did not
endorse the assign the mortgage. { had no
negOAsion with the respondent about the estate, aud
never lived any money from him, or any one else.
for the PdSh salt works"
The household furniture the esate at the date Of
the deed to him, belOngedfo the complainant and his
wife, that he claimed to il, that there
also CATTLE horses. carts and bel nging him
That there also large amount of lumber on the
estate, and large amount Of gods belonging to the
complainant when he conveyed it to the respondent
1t the season for the manufacture Of SALT and the
goods required to pay the natives for their labor
That there schooner belonging to complainant
which worth $4,000, and the respondent six or
eight months ago. and ask ed him for the papers
of the schooner which he replied that he had none
but thought that be would 6nd them among the COM
Dainant's papers. That respondent replied that he