ration will not, of itself, and without any auxiliary cir-cumstance, create a resulting trust, and convert a grantee into a trustee; for this, as Mr. Sanders has truly observed, would destroy the effect of every voluntary conveyance. There must be the absence of both a consideration, and a declaration of the use. If only part of the purchase money be paid by the third party, there will be a resulting trust in his favour pro tanto; and the doctrine applies to a joint purchase. So, if a purchase be made by a trustee, with trust moneys, a trust will result to the owner of the money.c If a trustee renews a lease, the new lease will be subject to the trust affecting the old one; and it is a general and well settled princi

in reference to the following cases, extracted from the numberless varieties of trusts:

(1.) Implied trusts arising out of the equitable conversion of land into money, or money into land. (2.) Where an estate is purchased in the name of one person, and the consideration is paid by another. (3.) Where a conveyance is made of land without any consideration or declaration of the uses. (4.) Where a conveyance is made of land in trust declared as to part, and the conveyance is silent as to the residue. (5.) Where a conveyance of land is made upon such trusts as shall be appointed, and there is a default of appointment. (6.) Where an estate is conveyed on particular trusts, which fail of taking effect. (7.) Where a purchase is made by a trustee with trust money. (8.) Where a purchase of real estate is made by partners with partnership funds. (9.) Where a renewal of a lease is obtained by a trustee, or other person standing in some confidential relation. (10.) Where purchases are made of outstanding claims upon an estate by trustees, or some of the tenants thereof, connected by privity of estate with others having an interest therein. (11.) Where fraud has been committed in obtaining a conveyance. (12.) Where a purchase has been made of land without a satisfaction of the purchase money to the vendor. (13.) Where a joint purchase has been made by several, and payments of the purchase money to the vendor have been made by some beyond their proportion. Lomax's Digest, vol. i. 200. * Sanders on Uses, 227.

Ryal v. Ryal, 1 Atk. Rep. 59. Amb. 413. Eden's Rep. 515. Lane v. Dighton, Amb. 409.

& Beame, 338. Story, J., 3 Mason's Rep. 364.

Bartlett v. Pickersgill, 1 Wray r. Steele, 2 Vesey,

• Kirk v. Webb, Prec. in Chan. 84. Ryal v. Ryal, Amb. 413. If one partner purchase lands with partnership funds, a resulting trust will arise. Philips v. Crammond, 2 Wash. Cir. Rep. 441.

*307

ple, that whenever a trustee or agent deals on his own account, and for his own benefit, with the subject entrusted to his charge, he becomes chargeable with *the purchase as a trustee. If a trustee converts trust property contrary to his duty, the cestui que trust has the option to hold him responsible personally, or to follow the property if not held by a bona fide purchase without notice, or to pursue the proceeds or the substituted property. There will be equally a resulting trust when the purposes for which an estate has been conveyed fail, by accident or otherwise, either in whole or in part, or if a surplus remains after the purposes of the trust are satisfied.c

A court of equity will regard and enforce trusts in a variety of other cases, when substantial justice, and the rights of third persons, are essentially concerned. If a

a

Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252, and the various cases there referred to. Philips v. Crammond, 2 Wash. Cir. Rep. 441.

Oliver v. Platt, 3 Howard's U. S. Rep. 333. 401.

• Randall v. Bookey, Prec. in Ch. 162. Emblyn v. Freeman, ibid. 541. Stonehouse D. Evelyn, 3 P. Wms. 252. Digby v. Legard, cited in ibid. 22,

note.

The general rule is that trustees are responsible only for their own acts, and not for the acts of each other. 2 Story's Eq. 520. But one trustee is liable for an abuse of trust by his co-trustees. (1.) When the money has been received jointly. (2.) When a joint receipt has been given, unless it be shown by satisfactory proof that the joining in the receipt was necessary, or merely formal, and that the money was in fact paid to the co-trustee. (3.) When the moneys were in fact paid to his companion, yet so paid by his act, direction, or agreement. Monell v. Monell, 5 Johns. Ch. Rep. 287. Pim v. Downing, 11 Serg. & Rawle, 66. Deaderick v. Cantrell, 10 Yerger, 270. Booth v. Booth, 1 Beav. 125. Lincoln v. Wright, 4 Id. 427. Joint trustees cannot separately act or give a discharge. Montgomery v. Clark, 2 Atk. 379. Walker v. Symonds, 3 Swanston, 63. Hertell v. Van Buren, 3 Edwards' N. Y. Ch. Rep. 20. The power, interest and authority of co-trustees in the subject matter of the trust, being equal and undivided, they cannot like executors act separately, but all must join. This principle enters into all cases depending upon the discretion and judgment of the trustees, in contradistinction to acts of a mere ministerial nature. The former require

trust be created for the benefit of a third person without his knowledge, he may, when he has notice of it, affirm the trust, and call upon the court to enforce the performance of it. Collateral securities given by a debtor to his surety, are considered as trusts for the better security of the creditor's debt; and chancery will see that their intention be fulfilled. So, a purchaser of land,

the concurrence of all the trustees; the latter may be performed by one. Vandever's Appeal, 5 Watts & Serg. 405. The same rule applies in the case of two or more assignees of a bankrupt. Opinions of the Attorneys General of the United States, Washington, 1841, vol. i. 93. Rigby ex parte, 19 Vesey, 463.

Neilson v. Blight, 1 Johns. Cas. 205. Weston v. Barker, 12 Johns. Rep. 281. Small v. Oudley, 2 P. Wms. 427. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 129. Com. Dig. tit. Chancery, 4. W. 5. Ibid. 2. A. 1. Story's Com. on Eq. Juris. vol. ii. 307. Suydam v. Dequindre, Harrison's Mich. Ch. Rep. 347. If a person receives money, and promises to pay it over to a third person, that person may sue for it. Crumpton v. Ballard, 1 Shaw's V. Rep. N. S. 251. This doctrine, in a late case, has been much restricted in England. In the case of Garrard v. Lord Lauderdale, (3 Simon's Rep. 1,) it was held, that if a debtor convey to a trustee, upon trust to sell, and pay certain schedule creditors, they cannot enforce the trust, unless they have become partie to the deed by executing it. See supra, vol. ii. p. 533. But in Marigny v. Remy, 15 Martin's Louis. Rep. 607, it was decided, that one might have an action on a stipulation in his favour in a deed to which he was not a party. See Smith v. Kemper, 3 ibid. 622, and 4 ibid. 409, and Duchamp v. Nicholson, 14 ibid. 672. S. P. This is conformable to the French law. Toullier, Droit Civil Français, liv. 3, tit. 3, c. 2, n. 150. Pothier, Traité des Oblig. No. 71. An action at law will not lie by a cestui que trust against a trustee or his executor, &c., upon an implied promise arising from the acceptance of the draft, and the conversion of the funds into money. The remedy is in equity. But the action will lie upon an express promise to pay, founded on assets in hand. Weston v. Barker, 12 Johns. Rep. 276. Dias v. Brunnell, 24 Wendell, 1. The general doctrine is that trusts are of exclusive equity cognizance. Watkins v. Holman, 16 Peters' Rep. 25. 58. 59. Conway ex parte, 4 Arkansas Rep. 302.

Maure v. Harrison, 1 Eq. Cas. Abr. 93. K. 5. Wright v. Morley, 11 Vesey, 12. 22. If A. owes B., and the latter orders it, or a part of it, to be paid to C., and B. has notice of the order in the first case, and accepts of it in the other, it is an assignment of the debt, or a part of it, as the case may be to C., and equity will enforce payment of the trust so created in favour of the equitable assignee. Ex parte South, 3 Swanston, 343. Tiernan v. Jackson, 5 Peters' Rep. 598.

с

with notice of a trust, becomes himself chargeable as a trustee, if it be in a case in which the trustee was not authorized to sell. And if a weak man *308 sells his estate for a very inadequate consideration, equity will raise a trust in favour of him, or his family. But it would lead me too far from the restricted nature of this work to attempt to specify all the cases in which trusts are construed to exist, under the enlarged and comprehensive view of equitable rights and titles, which come within the protection of a court of equity. Mr. Humphrey, in his Observations on Real Property, divided trusts into active and passive. In the former, confidence is placed, and duty imposed, demanding activity and integrity. The latter he considers as a mere technical phantom; and he mentions the instances of trustees introduced into assignments of terms for protecting the inheritance, and into marriage settlements for preserving contingent remainders, and raising portions for younger children. All these passive, or formal trusts, he proposes, in his Outlines of a Code, to abolish, as useless or mischievous, and to prescribe regulations to active trusts, with a reservation of the existing cases of a resulting

trust.

(3.) Restricted in New-York.

The New-York Revised Statutes, in relation to trusts, seem to have adopted these, or similar suggestions; and they have abolished passive trusts, where the trustee has only a naked and formal title, and the whole beneficial

• Murray v. Ballou, 1 Johns. Ch. Rep. 566. Shepherd v. M'Evers, 4 ibid. 136. Graves v. Graves, 1 Marshall's K. Rep. 166. Griggett v. Well, 2 ibid. 149. Marshall, Ch. J., 1 Cranch's Rep. 100.

ь Brogden v. Walker, 2 Harr. & Johns. 285. Rutherford v. Ruff, 4 Dess. Eq. Rep. 350.

interest, or right in equity, to the possession and profits of land, is vested in the person for whose benefit the trust was created. The statute declares, that the person so entitled in interest shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest." If any such passive trust be created by any disposition of lands by deeds or devise, no estate or interests whatever vest in the trustee. This provision is founded in

sound policy. The revisers have justly observed, *309 that the separation of *the legal and equitable

a

Lands, tenements, and real estate, held in trust by one person for the use of another, are consequently made liable to debts, judgments, decrees, executions, and attachments, against the person to whose use they are holden. New-York Revised Statutes, vol. ii. 368, sec. 26. This had always been the law of New-York, and the statute of 1787, (sess. 10. c. 37, sec. 4,) re-enacted verbatim the statute of 29 Charles II., c. 3, sec. 10, on this subject. It rendered liable on an execution at law against the estate of a cestui que trust, the lands of which he had the whole or entire beneficial interest, and the trustee only a mere naked legal title. But it did not apply to cases in which the cestui que trust had only an equitable interest in an imperfect state or a special trust created for his benefit without being liable for his debts, or when the trustee having the legal title was entitled to retain it until some further act, as payment or otherwise, was done by the cestui que trust. Foote v. Colvin, 3 Johns. Rep. 216. Bogart v. Perry, 1 Johns. Ch. Rep. 52. S. C. 17 Johns. Rep. 351. The same law taken from the English statute prevails in other states. Richards v. M'Kie, State Eq. Rep. S. C. 184. Hopkins v. Stump, 2 Harr. & Johns. 301. Vaux v. Parke, 7 Watts & Serg. 179. Fisher v. Taylor, 2 Rawle, 33. Goodwin v. Anderson, 5 Smedes & Marshall, 730. Thornhill v. Gilmer, 4 Smedes & Marshall, 153. Shute v. Harder, 1 Yerger's Tenn. Rep. 1. Revised Statutes of Indiana, 1838. But not in New-Jersey, as see supra, vol. ii. 443. A judgment under the statute of uses which authorized a sale of the equitable interest in real estate of a judgment debtor, did not bind the equitable interest as against a bona fide purchaser from the time of docketing the judgment, but only from the time of issuing the execution. Hunt v. Coles, Comyn's Rep. 226. Harris ❤. Pugh, 12 J. B. Moore, 517. In Tennessee, entries or locations of land held by the debtor are vendible on execution. Statute Laws of Tennessee, 1836, p. 280. So is a resulting trust, being an equitable interest. Pool v. Glover, 2 Iredell N. C. Rep. 129. But where the legal estate is in a trustee, and the trust so requires it, the trust estate cannot be sold on execution. Davis D. Garrett, 3 Iredell, 459.