42 the various classifications of trusts, after the Statute of Uses, when the former trusts passive disappeared as trusts and passed into the rank of legal estates by operation of that statute. Anterior to the Revised Statutes, trusts were variously classified, according to the nature of the duty imposed on the trustee, into naked, simple or passive,40 and active or special. When classified according to the manner of their creation, trusts were (1) by act of the parties," (2) by operation of law. Special trusts by act of the parties were (1) express or (2) implied.45 Trusts by operation of law were classified again as (a) presumptive,46 (b) resulting, and (c) constructive.48 The classification was not always strictly observed and the terms sometimes clash in practice, contrary terms being used as equivalents.49 Other classifications, such as executed 50 and executory,51 we need not notice in this connection. 44 43 Implied Trusts. Implied trusts are strictly those trusts which are to be inferred from the language of a particular limitation. They may, therefore, be termed with more accuracy inferential trusts special. But the use of the term is not now confined to this class of trusts, but sometimes denotes all resulting trusts.52 As no particular language is necessary to create a trust,53 it seemed appropri ate to exclude from the operation of this section of the statute those trusts which, though not express, the courts might imply from the context of instruments. Implied trusts are not, however, favored.54 40 Lewin, Trusts, 18. 41 Lewin, Trusts, 18. 42 Lewin, Trusts, 21; 1 Spence, Eq. Juris. 495. 43 Lewin, Trusts, 21; 1 Spence, Eq. Juris. 495. 44 Lewin, Trusts, 108; 1 Spence, Eq. Juris. 495; Cuyler v. Bradt, 2 Cai. Cas. 326. 45 Lewin, Trusts, 108; 1 Spence, Eq. Juris. 509. 46 Lewin, Trusts, 201. 47 1 Spence, Eq. Juris. 510. 481 Spence, Eq. Juris. 510. 49 Foote v. Bryant, 47 N. Y. 544; I Spence. Eq. Juris. 509, note h. 50 Lewin, Trusts, III. Foote v. Bryant, 47 N. Y. 544; cf. 53 Leggett v. Perkins, 2 N. Y. 297; Wright v. Douglass, 7 id. 564; Dillaye v. Greenough, 45 id. 438, 445; Vernon v. Vernon, 53 id. 351; Heermans v. Robertson, 64 id. 332; Moore v. Hegeman, 72 id. 376, 384; Donavan v. Van De Mark, 78 id. 244; Morse v. Morse, 85 id. 53; Ward v. Ward, 105 id. 68; Toronto Trust Co. v. C., B. & Q. R. R. Co., 123 id. 37. 54 Foose v. Whitmore, 82 N. Y. 405; Henderson v. Henderson, 113 id. I, II. Secret Trusts. To some extent certain secret trusts, which were not strictly trusts arising ex maleficio, may be said to be saved by this section rather than by that following in this act. For section 94 refers only to two classes of trusts ex maleficio. Thus, where one is induced to give a legacy or to change his will by a promise, express or implied, of the legatee to devote it to a lawful purpose other than that of the legatee, equity will enforce the promise or undertaking as an implied or secret trust.55 55 Trustees of Amherst College v. Ritch, 151 N. Y. 282; O'Hara v. Dudley, 95 id. 403; Williams v. Fitch, 18 id. 546; Hirsh v. Auer, 146 id. 13, 19; Ahrens v. Jones, 169 id. 555, 560; McClellan v. Grant, 83 App. Div. 599; Jimmerson v. Ferguson, 57 Misc. Rep. 504; cf. Hone v. Van Schaick, 7 Paige, 221; 20 Harv. Law Rev. 549. § 94. Grant to one where consideration paid by another. A grant of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the person paying the consideration, and, unless a fraudulent intent is disproved, a trust results in favor of such creditors, to an extent necessary to satisfy their just demands; but the title vests in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor, unless the grantee either, 1. Takes the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration; or, 2. In violation of some trust, purchases the property so conveyed with money or property belonging to another. Formerly section 74, Real Property Law of 1896, chapter XLVI, General Laws: 74. Grant to one where consideration paid by another.-A grant of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the person paying the consideration, and, unless a fraudulent intent is disproved, a trust results in favor of such creditors, to an extent necessary to satisfy their just demands; but the title vests in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor, unless the grantee either, 1. Takes the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or, 2. In violation of some trust, purchases the property so conveyed with money or property belonging to another.56 Section 74 was formerly 1 Revised Statutes, 728, sections 51, 52, 53: § 51. Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.7 § 52. Every such conveyance shall be presumed fraudulent, as against the creditors, at that time, of the person paying the consideration; and where a fraudulent intent is not disproved, a trust shall esult in favor of such creditors, to the extent that may be necessary to satisfy their just demands.58 58 Repealed, chap. 547, Laws of 1896. 56 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 57 Repealed, chap. 547, Laws of 53. The provisions of the preceding fifty-first section shall not extend to cases, where the alienee named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed, with monies belonging to another person.59 Comment on Section. The reader will observe that, notwithstanding the changes made by this section in the language of the Revised Statutes, the Statutory Revision Commission reported to the Legislature that the law remains unchanged by the original of this section.61 62 Consideration. At common law a conveyance, even by way of feoffment, if made without consideration, raised a use in favor of feoffor after the Statute Quia Emptores, although it is said that a consideration was not regarded as necessary to support a commonlaw conveyance 63 by way of feoffment or fine.64 But since the Statute of Uses, those conveyances which originated in equity, "bargain and sale" and "covenant to stand seised," have required a consideration to support them.65 And so a "lease and release," which was a compound conveyance, made effective partly by the common. law and partly by the Statute of Uses, required a consideration.66 But the consideration need not always be expressed in a deed.67 Consideration Given by a Third Person. At common law, the principles governing uses in equity dictated that, where the consideration was paid by a third person, the grantee should prima facie stand seised to the use of such third person.68 The old Statute of v. Burton, 13 Barb. 173; Corwin v. Corwin, 6 N. Y. 342; Wood v. Chapin, 13 id. 509, 517; Van der Volgen v. Yates, 9 N. Y. 219, 222; supra, p. 29 (Introduction). II 66 Carthew "Reading on Uses," 371. Cunningham v. Freeborn, Wend. 240, 248; Wood v. Chapin, 13 N. Y. 509, 517; cf. Morris v. Ward, 36 id. 587, 598; Loeschigk v. Hatfield, 51 id. 660. 68 Foote v. Colvin, 3 Johns. 216; Jackson ex dem. v. Mills, 13 id. 463; Jackson ex dem. v. Morse, 16 id. 197; Garfield v. Hatmaker, 15 N. Y. 475, 477; McCartney v. Bostwick, 32 id. 53; Willard, Real Est. & Conv. 234; Leary v. Corvin, 181 N. Y. 222, 224. Uses then executed the use in the third person.6 69 The revisers believed that the preservation of these rules of law might defeat their effort to abolish passive uses and trusts, and that there was no real reason why a person paying the consideration should ever take the legal title in the name of a third person,70 unless a fraud was contemplated. Changes Made by the Revised Statutes. The Revised Statutes consequently abolished resulting trusts in favor of persons furnishing the actual consideration for a deed taken by their direction in the name of a third person; and such statutes also discharged the third person from any trust by reason thereof," excepting in those cases where the person paying the consideration then had creditors.72 In such cases a trust resulted to the extent of the just demands of existing creditors,73 who may proceed to enforce the trust after exhausting their legal remedies,74 and the more diligent creditor has the preference over others.75 But it seems that where a title is taken in the name of a third person to defeat dower, this section may not apply.76 Nor does it apply to a case where the person furnishing the consideration takes a life estate only and causes the remainder to be limited to heirs-atlaw," nor to a case where fraudulent intent is disproved as a fact.78 77 69 See Revisers' note, 1 R. S. 728, $ 51, Appendix III, infra; Manahan v. Holmes, 58 Misc. Rep. 86, 89. 70 Id., supra. 71 Jeremiah v. Pitcher, 20 Misc. Rep. 513; Bodine v. Edwards, 10 Paige, 504; Fagan v. McDonnell, 115 App. Div. 89, 98; Satterly v. Dewick, 129 id. 701; Norton V. Stone, 8 id. 222; Garfield v. Hatmaker, 15 N. Y. 475; Everett v. Everett, 48 id. 218; Dunlap v. Hawkins, 59 id. 342; Niver v. Crane, 98 id. 40; cf. Rogers v. N. Y. & Texas Land Co., 134 id. 197; Robertson v. Sayre, id. 97; McCartney v. Titsworth, 119 App. Div. 547; 20 Harv, Law Rev. 549. 72 In case of fraudulent conveyances under section 226, infra, subsequent as well as existing creditors can impeach the conveyance. Mead v. Gregg, 12 Barb. 653; Read v. Livingston, 3 Johns. Ch. 481. 73 Wood v. Robinson, 22 N. Y. 564, 566; McCartney v. Bostwick, 32 id. 53; Underwood v. Sutcliffe, 77 id. 58; cf. Dunlap v. Hawkins, 59 id. 342; Niver v. Crane, 98 id. 40; Real Prop. Law, $8 226, 227, infra. 74 Ocean Bank v. Olcott, 46 N. Y. 12; Underwood v. Sutcliffe, 77 id. 58, 63; note to 14 Abb. N. C. at p. 40. 75 Mandeville v. Campbell, 45 App. Div. 512. 76 Nichols v. Park, 38 Misc. Rep. 176; sed. cf. infra, under Article on Dower. 77 Sears v. Palmer, 109 App. Div. 126. 78 Colnon v. Buckley, 117 App. Div. 742; Fagan v. McDonnell, 115 App. Div. 89, 98. |