Sale and wife vs. McLean et al. and after Sale had executed notes for the payment of the purchase money, on the 6th of December, 1856, he borrowed money from McMahon with which he paid the first installment note of $6,500 to Pettit, $4,600 of which sum was applied to the payment of the lands which he had bought, and most likely, the balance to pay for cattle, hogs and corn, purchased of Pettit at the same time that he bought the land. To secure McMahon for this borrowed money, afterwards, on the 13th of December, 1856, he caused Tweedy, who bought the land which belonged to his wife, to execute his note to McMahon for $5,716.44. This note was part of the proceeds of the sale of the land, and was to be paid March, 1857, and was, during that year, paid to McMahon to satisfy the debt which William F. Sale had contracted with him for borrowed money. It is also in proof, that a considerable sum of money was remitted by William F. Sale, either directly or indirectly, to S. O. Nelson & Co., and Sale himself deposes, that it was a sum sufficient or nearly sufficient to pay the notes which Sale owed to Pettit, and which S. O. Nelson & Co. had taken up and paid. Witness says, that the money sent to S. O. Nelson & Co., was money received from the sale of his wife's land. Concede all this to be true, and yet the testimony shows with like certainty, that the notes were taken up and paid before these remittances were made, and had been charged in a general account against Sale. Sale gave no direction as to how these remittances should be placed to his credit. S. O. Nelson received and applied the money as a credit upon the general account of Sale, which, in the absence of special instructions, they had clearly a right to do. An outstanding balance is, upon settlement in 1865 or 1866, shown to have been nearly $14,000, for which Sale gave his note. Such is substantially the evidence, and upon which we are Sale and wife vs. McLean et al. called to decide, whether the evidence is sufficient to raise an implied trust in favor of the wife, upon the ground that the land was purchased with her money. The law is, "that if a purchase of property be made, and the deed is taken in the name of one party whilst the consideration is given or paid by another, a resulting trust immediately arises by virtue of the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds." Hill on Trusts, 【91. And "this doctrine is strictly limited to cases where the purchase has been made in the name of one person, and the purchase money has been paid in another." 2 Story's Eq., 631. "And where the trust does not arise on the face of the deed itself, the parol evidence must prove the fact of the advancement of the purchase money very clearly." Leading Eq. Cas., 265. The purchase money must be paid or secured by another at the same time or previously, and, as part of one transaction. Buck v. Pike, 11 Me., 9; Boyd v. McLean, 1 Johns. Ch., 582; Adam's Eq., 330 and 331. It is evident from these authorities, that the trust must immediately arise by virtue of the purchase, and of the consideration paid, as said by Hill, above cited; and if it is to arise out of such payment, then, of course, the payment must be made at the time the purchase is made, as held in Buck v. Pike, and other authorities above cited. If no trust was created at the time of the purchase, none can arise afterwards, because the rights of the parties must, of necessity, become then fixed. In the case under consideration, it has been argued, that if the money of the wife was, after the purchase made by the husband in his own name, and, upon his individual credit, paid to those who had advanced money with which the hus Sale and wife vs. McLean et al. band had paid his notes given for the purchase of the land, such payment, though not directly, was indirectly, a payment of the purchase with the money of the wife. It seems however to us, that in this case, it was but in fact an application of the money of the wife to satisfy debts which Sale had contracted, no doubt, to enable him to pay for the lands purchased. But be this as it may, this was most clearly no purchase of land with the money of the wife, for no money was at that time paid, certainly not of hers, for at that time she had received none from the sale of her lands. Such being the case, there was no implied trust raised in the wife's favor upon the lands. This disposes fully of the case as made by her bill. It is the only ground set forth for equitable jurisdiction, and one she has failed to sustain in proof. But as the prayer for relief is alternative, that is, that if she fails to establish a trust, she should be entitled to a decree for a lien upon the land to the extent of the money of hers which was applied to the purchase of the land, we will see upon what grounds her claim for relief rests. and We have already made sufficient reference as to how, for what purpose, her money was in fact expended. But then if, as we hold, there is no trust created in her favor, upon what grounds of equity can she rest her case for the interposition of this court to enforce a lien? If the fact of this indirect payment entitles her to an equitable lien on the lands, we are at a loss to see why S. O. Nelson & Co. might not also have asserted their right to a lien upon the land, because their payment of the purchase money was made directly to Pettit, and out of their own money. We have looked carefully into the authorities to see whether, under the ancillary powers of the court, a decree might not be rendered in the wife's favor in consideration that the money (conceding such to have been Sale and wife vs. McLean et al. the case) was paid for the debts contracted for the purchase of the land, but have failed to find an authority, or an adjudicated case to sustain such a decree. Cases frequently occur in which from oversight, negligence or prodigality, or even when revolutions produce disaster and ruin, but the court, however conscious that such is the case, cannot depart from the well established principles upon which equity jurisdiction is founded to afford relief in exceptional cases of hardship. The husband has failed to answer; the debts were his, founded upon a meritorious and valid consideration. Judgments have been rendered, the property levied upon and sold, and bought in by the creditors; there has been carried out of their purchase 160 acres as a homestead, embracing the buildings and, doubtless, the best improved and most valuable land. The right of homestead claimed in the amended crossbill, in right of the husband and wife, who were actual residents upon the land with their family, seems to have been conceded by the parties in an agreed state of facts, signed by the counsel of both parties, and was decreed to them by the court, and in regard to which in any event we have nothing to do. The complainants have not appealed and have submitted to the whole decree. So far as regards the 160 acres decreed as a homestead, the decree will stand, and as regards the 80 acres sold by Sale and wife, the decree, under the agreement of the parties, in affirmance of such sale, was proper, and when we apply the law as we hold it to be, and as applicable to the equitable rights of the parties, the decree in affirmance of the title of complainants to the residue of the land in controversy was also correct. Finding no error in the proceedings of the court below and in the decree rendered therein, the same is in all things affirmed. 29 633 Minors are incapable, by act or declaration, of waiving or abandoning 73 268 73 269 3. It is the duty of the guardian to take possession of the homestead and rent it for the benefit and support of the ward, and this is the occupancy contemplated by the statute. (Act of 1852.) - Effect of the act upon the rights of creditors. The effect of the homestead act of 1852 was to suspend the rights of creditors until the child or children should become of age, at which time the creditors would be entitled to satisfaction out of the homestead. 4.- Ejectment will lie for the recovery of. During the existence of the homestead right, the children have such an estate and right of possession as will enable them to maintain ejectment for the recovery of the land. APPEAL from White Circuit Court. Hon. JOHN WHYTOCK, Circuit Judge. Coady & McRea and Turner & Moore, for appellant. WALKER, J. E. C Goodwin, the father of defendants, resided with his family, consisting of a wife and four children, upon a tract of 160 acres of land, in the county of White, of which he was the owner. He was a citizen of the state, the head of a family, a householder, and an actual resident upon the land with his family, at the time of his death, which took place in January, 1864. His widow and children continued to reside upon and occupy the homestead place until the summer of that year, at which time she died, leaving the defendants, her minor children, the oldest but fourteen years of age, upon the place. Jones, the uncle of the children, who |