Certain any Trustee in a trust, where the title of such Trustee unaffected. is not merely nominal, but is connected with some power of actual disposition or management in relation to the real property which is the subject of the trust. NOTE.-Frazer vs. Western, 1 Barb. Ch., p. 238. Ref Trustees of estate for use of another take no interest. Preceding sections qualified. Trust must 850. Every disposition of real property, whether by transfer or will, must be made directly to the person in whom the right to the possession and profits is intended to be vested, and not to any other, to the use of or in trust for such person; and if made to any person, to the use of or in trust for another, no estate or interest vests in the Trustee; but he must execute a release of the property to the beneficiary on demand, the latter paying the expense thereof. NOTE.-The transfer must be made directly.-Hotchkiss vs. Elting, 36 Barb., p. 44. If not so made, no estate vests in the Trustee.-Ring vs. McCoun, 10 N. Y., p. 268; Rawson vs. Lampman, 5 N. Y., p. 456; Wright vs. Douglass, 7 N. Y., p. 564. The provision that a release must be executed is new (Ring vs. McCoun, 10 N. Y., p. 268), but is desirable in order to avoid difficulties in titles. 851. The preceding sections of this Title do not extend to trusts arising or resulting by implication of law, nor prevent or affect the creation of such express trusts as are hereinafter authorized and defined. 852. No trust in relation to real property is valid unless created or declared: 1. By a written instrument, subscribed by the Trustee, or by his agent thereto authorized by writing; 2. By the instrument under which the Trustee claims the estate affected; or, Am 3. By operation of law. NOTE.-See Code of Civil Procedure, Sections 1971, 1972. 853. Where a transfer of real property is made to one person, and the consideration therefor is paid by or for another, no use or trust results in favor of the NOTE.-Davis vs. Graves, 29 Barb., p. 480. The Transfer to one for money paid by another. creditors. 854. Every such transfer as is described in the last Rights of section is presumed to be fraudulent as against the creditors, at that time, of the person paying the consideration; and where a fraudulent intent is not disproved, a trust results in favor of such creditors to the extent necessary to satisfy their just demands. Ref NOTE.-Presumption of fraud.-Wood vs. Robinson, 22 N. Y., p. 564; Brewster vs. Power, 10 Paige, p. 568. Resulting trust.-Garfield vs. Hatmaker, 15 N. Y., p. 475; Wood vs. Robinson, 22-N. Y., p. 564; McCartney vs. Bostwick, 31 Barb., p. 390. 855. Section 853 does not apply: qualified. 1. To cases where the grantee took the grant as an Section 853 absolute transfer in his own name, without the consent or knowledge of the person paying the consideration; nor, 2. To cases where the grantee, in violation of a trust, purchased the real property so transferred with property belonging to another person. NOTE. If land is purchased in the name of one person, and the consideration is paid by another, a trust rises, and the person in whose name the conveyance is taken holds as trustee for the one furnishing the money.-Osborne vs. Endicott, 6 Cal., p. 149; Hidden vs. Jordan, 21 Cal., p. 92; Bayles vs. Baxter, 22 Cal., p. 575; Simson vs. Eckstein, 22 Cal., p. 580; Millard vs. Hathaway, 27 Cal., p. 119; Currey vs. Alvarado, 34 Cal., p. 254; Jenkins vs. Frink, 30 Cal., p. 586. The facts out of which the trust arises may be proved by parol.—Osborne vs. Endicott, 6 Cal., p. 149; Bayles vs. Baxter, 22 Cal., p. 575. But the proof must be clear.- 856. No implied or resulting trust can prejudice the rights of a purchaser or encumbrancer of real property for value and without notice of the trust. NOTE.-Wood vs. Robinson, 22 N. Y., p. 564; Sieman vs. Austin, 33 Barb., p. 14. 857. Express trusts may be created for any of the following purposes: 1. To sell real property for the benefit of creditors; 2. To sell, mortgage, or lease real property for the benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon; 3. To receive the rents and profits of real property, and pay them to or apply them to the use of any person, whether ascertained at the time of the creation of the trust or not, for himself or for his family during the life of such person, or for any shorter term, subject to the rules of Title II of this Part; or, 4. To receive the rents and profits of real property, and to accumulate the same for the purposes and within the limits prescribed by the same Title. NOTE.-Express trusts for the sale of real property for the benefit of creditors.-Rogers vs. Tilley, 20 Barb., pp. 641, 642; Darling vs. Rogers, 22 Wend., p. 483; Van Nest vs. Yoe, 1 Sandf. Ch., p. 4; Planck vs. Schermerhorn, 3 Barb. Ch., p. 644. The words "annuitants or other," in the second subdivision, are new, but supported by Lang vs. Ropke, 5 Sandf., p. 371; Hawley vs. James, 16 Wend., pp. 61, 117. The words "pay them to or," in the third subdivision, are new, but supported by Leggett vs. Perkins, 2 N. Y., pp. 297, 306, 309; Leggett vs. Hunter, 19 N. Y., p. 454; Noyes vs. Blakeman, 6 N. Y., p. 581. The words "whether ascertained at the time of the trust or not," in the third subdivision, are new, but conform to Gilman vs. Reddington, 24 N. Y., pp. 13, 14. The words "for himself or for his family," in the same subdivision, are also new, but are sustained by Rogers vs. Ref. Sub. Tilley, 20 Barb., pp. 639, 641. Though a trust for devises in trust to be deemed 858. A devise of real property to executors or Certain other Trustees, to be sold or mortgaged, where the Trustees are not also empowered to receive the rents and profits, vests no estate in them; but the trust is valid as a power in trust. 859. NOTE.-Hawley vs. James, 16 Wend., p. 114; Darling vs. Rogers, 22 Wend., p. 492; Germond vs. Jones, 2 Hill, p. 573; Campbell vs. Johnson, 1 Sandf. Ch., p. 148. Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such person, in the same manner as personal property which cannot be reached by execution. Rep, Sub. NOTE. Sellick vs. Mason, 2 Bart. Ch., p. 79; Clute vs. Blood, 8 Paige, p. 83; L'Amoreux vs. Van Rensselaer, 1 Barb. Ch., p. 34; Noyes vs. Blakeman, 6 N. Y., p. 567. powers. Profits of land liable to creditors in certain cases. express powers in 860. Where an express trust in relation to real Other property is created for any purpose not enumerated in trusts to be the preceding sections, such trust vests no estate in the trust. Trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, is valid as a power in trust, Creation of certain prohibited. subject to the provisions in relation to such powers contained in Title V of this Part. Reh NOTE.-Darling vs. Rogers, 22 Wend., p. 494; Hotchkiss vs. Elting, 36 Barb., p. 45. 861. Nothing in this Title prevents the creation. powers not of a power in trust for any of the purposes for which an express trust may be created. And land, ete, to persons entitled. NOTE.-Under a New York statute similar to this Chapter, but which contained no provision corresponding with Section 861, the contrary was assumed by Bronson, J., in Hawley vs. James, 16 Wend., pp. 174, 175, followed in Arnold vs. Gilbert, 3 Sandf. Ch., p. 563. This section enacts the construction adopted expressly by Duar, J., in Lang vs. Ropke, 5 Sandf., pp. 367, 372, 373, and by implication in Tucker vs. Tucker, 5 N. Y., p. 408, and Downing vs. Marshall, 23 N. Y., p. 380. 862. In every case where a trust is valid as a descend to power in trust, the real property to which the trust relates remains in, or passes by succession to, the persons otherwise entitled, subject to the execution of the trust as a power in trust. Trustees of express trusts to have whole estate. Author of trust may 863. Except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the Trustees, subject only to the execution of the trust. The beneficiaries take no estate or interest in the property, but may enforce the performance of the trust. NOTE.-Briggs vs. Davis, 21 N. Y., p. 576; Savage vs. Burnham, 17 N. Y., p. 569; Noyes vs. Blakeman, 6 N. Y., pp. 578-581; Coster vs. Lorillard, 14 Wend., p. 304. 864. Notwithstanding anything contained in the devise, etc. last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong, in the event of the failure or |