the statute was directed against frauds and perjuries, it is obvious that resulting trusts were not within the mischief intended to be remedied. The aim of the legislature was, not to disturb such trusts as were raised by maxims of equity and so could not open a door to fraud or perjury, but, by requiring the creation of trusts by parties to be manifested in writing, to prevent that fraud and perjury to which the admission of parol testimony had hitherto given occasion. And the enactment itself is applicable only to this view of the subject; for the legislature could scarcely direct, that "all declarations or creations of trusts should be manifested and proved &c.," unless the trusts were in their nature capable of manifestation and proof; but, as resulting trusts are the effect of a rule of law, to prove them would be to instruct the Court in its own principles, to certify to the judge how equity itself operates. The exception could only have been inserted ex majori cautelá, that the extent of the enactment might not be left to implication. But why, it will be asked, are resulting trusts upon conveyances excepted, and not resulting trusts upon wills? Because the statute had spoken only of declarations or creations of trust, and by a will no resulting trust is or can be declared or created. If lands be devised to A. and his heirs upon trust to pay the testator's debts, the resulting trust of the surplus is no new declaration or creation; the right construction is, that the testator has disposed of the legal estate to the devisee, and of part of the equitable in favour of creditors, but the residue of the equitable, though said to result, has in fact never been parted with, but descends upon the heir at law as part of the original inheritance. In conveyances, however, this is not equally the case; for, if a purchase be taken in the name of a third person, a trust which had no previous existence arises upon the property in favor of the real purchaser; and so if a lease be renewed by a trustee, the equity which was annexed to the old term immediately fastens upon the new. Here, then, it is evident there is an actual creation of trust; and, to obviate all doubts as to the operation of the enactment, resulting trusts arising out of conveyances are expressly excepted. It was formerly doubted, whether, where a purchase was taken in the name of a stranger, and the payment of the consideration by the real purchaser did not appear on the face of the deed, that fact could, since the Statute of Frauds, be established by parol. It seems to have been originally settled that it might (b); but in Kirk v. Webb (c) it was argued "there could be no trust unless there were a declaration in the deed to that purpose, for by the statute there could be no trust unless it were declared in writing; that if it were a resulting trust, it was made so by parol proof, which was directly contrary to the statute, and would open a door to all the mischiefs it was intended to prevent; that it would introduce an utter uncertainty into all men's titles, for the best title might be spoiled by proving the purchase money to be another person's;" and the Court, in accordance with this reasoning, determined that parol evidence was inadmissible. The decision of Kirk v. Webb was followed in several subsequent cases(d); but the doctrine, though sup (b) Gascoigne v. Thwing, 1 Vern. 366. (c) Prec. Ch. 84. (d) Heron v. Heron, Pr. Ch. 163; S. C. Freem. 248; Skett v. Whitmore, Freem. 280; Kin der v. Miller, Pr. Ch. 172; and see Halcott v. Markant, Pr. Ch. 168; Hooper v. Eyles, 2 Vern. 480; Newton v. Preston, Pr. Ch. 103; Ambrose v. Ambrose, 1 P. W. 321; Deg v. Deg, 2 P. W. 414. ported by numerous precedents, has since been clearly overthrown by the concurrent authorities of Lord Hardwicke (e), Lord Henley (ƒ), Sir T. Clarke (g), and Sir W. Grant (h). But the rule as at present established will not warrant the admission of parol evidence, where an estate is purchased by an agent, and no part of the consideration is paid by the employer; for though an agent is a trustee in equity, yet the trust is one arising ex contractu, and not resulting by operation of law (i). And parol evidence, where admitted, must prove the fact very clearly (k); though no objection lies against mere circumstantial evidence, if sufficiently strong not to leave a doubt, as where the circumstances of the pretended purchaser are shown to be so mean as to make it impossible he should have paid the purchase money himself(). Should the nominal purchaser deny the trust by his answer, there seems to be no reason why parol evidence should not be admitted to establish the fact against him; for, before the Statute of Frauds parol evidence was undoubtedly admissible, and, as trusts by operation of law are expressly excepted from the statute, by what rule is parol evidence to be excluded (m)? But the solemnity of (e) Ryall v. Ryall, 1 Atk. 59; S. C. Amb. 413; Willis v. Willis, 2 Atk. 71. (f) Bartlett v. Pickersgill, 1 Ed. 516. (g) Lane v. Dighton, Amb. 409; Knight v. Pechey, 1 Dick. 327. (h) Lench v. Lench, 10 Ves. 517. (i) Bartlett v. Pickersgill, 1 Ed. 515. (k) Gascoigne v. Thwing, 1 Vern. 366; Halcott v. Markant, (1) Willis v. Willis, 2 Atk. 71, per Lord Hardwicke; and see Lench v. Lench, 10 Ves. 518. (m) In Bartlett v. Pickersgill, 1 Ed.515, where the defendant denied the trust, Lord Henley said, if the plaintiff had paid any part of the purchase, he would have admitted the evidence; and see Edwards v. the defendant's oath will of course require a considerable weight of evidence to overcome its impression (n). It is laid down by Mr. Sanders, that "if a person at his death leave any papers disclosing the real circumstances of the case, the Court will raise the trust even against the express declaration of the purchase deed (o)." We have seen that, according to the latest authorities, parol evidence is in ordinary cases admissible against the language of the purchase deed, but if Mr. Sanders's opinion to the contrary (p) were well founded, it does not appear how mere papers would satisfy the requisitions of the statute; for, to have that effect, the writings ought also to be signed by the party. The cases of Ryal v. Ryal (q) and Lane v. Dighton (r), which are cited for the position, do not at all turn upon the distinction suggested. It is observed by the same writer, that, "after the death of the supposed nominal purchaser, parol proof alone can in no instance be admitted against the express declaration of the deed (s); but the cases relied upon in support of this doctrine (t) do not distinguish between proofs in a person's lifetime and after his decease; they are cer tainly authorities for the exclusion of parol evidence generally; but in this respect, as before noticed, they have been subsequently overruled. It would seem, upon principle, that the death of the nominal purchaser cannot affect the admissibility of parol testimony, whatever effect it may have in detracting from its weight. In the question, whether a purchase in the name of a third person can be established by parol testimony, is involved the question, whether trust money can be followed into land by parol. A purchase with trust money is in fact a purchase paid for by the cestuis que trust; and on the ground that such a purchase is a trust resulting by operation of law, and not within the purview of the Statute of Frauds, it has been settled that parol evidence is clearly admissible (u). (u) Lench v. Lench, 10 Ves. 517, per Sir W. Grant; Ryall v. Ryall, 1 Atk. 59; S. C. Amb. 413; Lane v. Dighton, Amb. 409; Balgney v. Hamilton, Amb. 414. |