Partners an Exception. A partner, taking a deed in his own name for convenience, is not within the general rule abolishing resulting trusts, even though the consideration of the conveyance was furnished by the other partners.79

Parents and Children. Nor does the statute abolishing resulting trusts apply to a case where parents furnished the consideration of a conveyance to a third person, it being understood it was done for the benefit of an infant child,80 or some other member of the family, 81 and such was the construction of the old Statute of Uses.82 A trust is not ordinarily implied in favor of parents furnishing the consideration of a conveyance to a child, if the transaction might be deemed an "advancement." 83 Thus, where the father takes a title in the name of the son, it will be deemed an advancement," rather than a resulting trust for the father, although in several recent cases this principle is not noticed in the opinion.85 Involuntary Trusts an Exception. Where a grantee takes the conveyance in his own name without the consent or knowledge of the person furnishing the entire consideration, a resulting trust may still exist in favor of the person wronged; the case being excepted out of the abolition of resulting trusts.88 But the trust so results

79 Fairchild v. Fairchild, 64 N. Y. 471; cf. Levy v. Brush, 45 id. 589; Chester v. Dickinson, 54 id. 1; Traphagen v. Burt, 67 id. 30; Greenwood v. Marvin, 111 id. 423, on questions of partnerships in real estates.

80 Siemon v. Schurck, 29 N. Y. 598; Foote v. Bryant, 47 id. 544; Sandford v. Sandford, 5 Lans. 486, 491; s. c., 61 Barb. 239; s. c., Hun, 753; Partridge v. Havens, 10 Paige, 618; Piper v. Barse, 2 Redf. 19; cf. Smith v. Balcom, 24 App. Div. 437; Jackson v. Matsdorf, 11 Johns. 91; Proseus v. McIntyre, 5 Barb. 424; Matter of Morgan, 104 N. Y. 74; Dyer v. Dyer, 2 Cox, 92; 1 White & Tudor, Lead. Cas. in Eq. 236; Lee v. Timken, 10 App. Div. 213.

81 Siemon v. Schurck, 29 N. Y. 598; Sears v. Palmer, 109 App. Div. 126.

82 Cook v. Fountain, 3 Swan, 592; Kerly, Hist. Eq. 194, 195.

84

83 See under Real Prop. Law, §§ 295, 296.

84 Partridge v. Haven, 10 Paige, 618; Story, Eq. Juris., § 1202.

85 Smith v. Balcom, 24 App. Div. 437; cf. Dyer v. Dyer, 2 Cox, 92; Kincaid v. Kincaid, 85 Hun, 141; affd., 157 N. Y. 715.

80 Supra, 894; 1 R. S. 728; § 53; Swinburne v. Swinburne, 28 N. Y. 568; Lounsbury v. Purdy, 18 id. 515; Reitz v. Reitz, 80 id. 538; Helms v. Helms, 64 id. 642; Roulston v. Roulston, id. 652; Brown v. Cherry, 57 id. 645; note to 14 Abb. N. C. 18; Schierloh v. Schierloh, 148 N. Y. 103; Schultze V. Mayor, 103 id. 311; Church of St. Stanislaus v. Algemeine Verein, 31 App. Div. 133; Fagan v. McDonnell (No. 1), 115 id. 89, 98; Manahan v. Holmes, 58 Misc. Rep. 86; Lamb v. Schiefuer, 120 App. Div. 684.

only to the extent of the consideration actually furnished,87 and where a person furnishes only a part of the consideration for the conveyance wrongfully taken in the name of another, the grantee is not a trustee, but the person defrauded has an equitable lien.88 Separate Instrument. This section abolishing resulting trusts has no application where the trust is declared by a separate instrument from the grant.89

Trusts Arising Ex Maleficio. The condemnation of resulting trusts does not apply to trusts arising ex maleficio,90 or through the frauds of persons who occupy confidential relations to those furnishing the real consideration. And although trusts concerning lands can now be created and declared only by some deed or writing, or else by a last will,92 yet resulting trusts and those arising ex maleficio may be proven by evidence not in writing."

This Section not an Instrument of Fraud. This section of the statute has no application to cases where equities arise out of the agreement of the parties; the statute cannot be used as an instrument of fraud; 94 but this does not mean that the mere breach of an oral agreement is such a fraud.95

§ 95. Bona fide purchasers protected. An implied or resulting trust shall not be alleged or established, to defeat or prejudice the title of a purchaser for a valuable consideration without notice of the trust.

Formerly section 75, Real Property Law of 1896, chapter XLVI, General Laws:

§ 75. Bona fide purchasers protected. An implied or resulting trust shall not be alleged or established, to defeat or prejudice the title of a purchaser for a valuable consideration without notice of the trust.96

Formerly Revised Statutes, 728, section 54:

54. No implied or resulting trust shall be alleged or established, to defeat or prejudice the title of a purchaser, for a valuable consideration, *without notice of such trust.97

Comment on this Section. This section states a necessary exception to the resulting trust in favor of creditors, saved by the preceding section.98 No resulting or secret trust is now tolerated so as to defeat the title of a bona fide purchaser for value, nor should it be in a State where the recording acts are established.99 Who may come within the exception denoted is, however, another question. A person put upon inquiry by any circumstance, but failing to inquire, cannot be regarded as a bona fide purchaser under this section.1 Nor may one who takes for an antecedent debt.2

The trust is in favor of existing creditors and may be enforced in equity only. It is said that where the consideration is paid in order to satisfy a moral obligation, which the party paying it owes to grantee, no trust in favor of creditors exists. But this must depend on the superior. equity of the grantee, it would seem, and the sufficiency of the consideration.5 No resulting trust exists in favor of grantor because a part of the consideration fails, if the intention of grantor was to part with the entire estate.

96 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

97 Repealed, chap. 547, Laws of 1896. 98 Siemon v. Schurck, 29 N. Y. 598, 613; Garfield v. Hatmaker, 15 id. 474; Jackson v. Forrest, 2 Barb. Ch. 576; Guthrie v. Gardner, 19 Wend. 414; Brewster v. Power, 10 Paige, 562.

99 See 104. Real Prop. Law.

1 Baker v. Bliss, 39 N. Y. 70; Ten Fyck v. Witheck, 29 Abb. N. C. 314, and note.

2 Wood v. Robinson, 22 N. Y. 564, 567.

3 Brewster v. Power, 10 Paige, 562; McCartney v. Bostwick, 31 Barb. 390; revd. on another point, 32 N. Y. 53; Garfield v. Hatmaker, 15 N. Y. 475.

4 Wait v. Day, 4 Den. 439; Reid v. Fitch, II Barb. 339; sed cf. Garfield v. Hatmaker, 15 N. Y. at p. 484.

5 See below, §§ 263, 264, Real Prop. Law.

6 Van der Volgen v. Yates, 9 N. Y. 219, 224.

§ 96. Purposes for which express trusts may be created. An express trust may be created for one or more 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 apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto;

4. To receive the rents and profits of real property, and to accumulate the same for the purposes, and within the limits, prescribed by law.

Formerly 8 76, Real Property Law of 1896, chap. XLVI, General Laws.

76. Purposes for which express trusts may be created. An express trust may be created for one or more 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 rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto;

4. To receive the rents and profits of real property, and to accumulate the same for the purposes, and within the limits, prescribed by law.7

Section 76 was formerly 1 Revised Statutes, 728, section 55:

855. Express trusts may be created, for any or either of the following purposes:

1. To sell real property for the benefit of creditors:

2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon:

3. To receive the rents and profits of lands, and apply them to the education and support, or either, of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first Article of this Title:

4. To receive the rents and profits of lands, and to accumulate the same. for the purposes and within the limits prescribed in the first Article of this Title.8

8

The third express trust purpose, originally stated in the Revised Statutes, 7 Repealed by Real Prop. Law of Repealed, chap. 547, Laws of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

1896.

was almost immediately amended by chapter 320, Laws of 1830,9 so as to read as follows: To receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title.

As thus amended, the third trust purpose stood until 1 Revised Statutes, 728, section 55, was superseded by section 76 (supra) of The Real Property Law. No change has been made by the Consolidated Laws in this section.

Origin of Trusts in Anglo-American Jurisprudence. The precise origin of trusts originally cognizable in the courts of equity in England, and also in the Equity Courts of the older states derived from her empire, or adopting her laws, is not fully determined. One school of jurists assert that uses were introduced by the clergy (who were well acquainted with the dual ownership of the Roman law, "quiritarian" and "in bonis," and also with "dominium," and " usufruct," and "fidei-commissa,") in order to avoid the restrictions on gifts in mortmain or to ecclesiastical bodies.10 Others see in the English law of uses and trusts a Teutonic origin, and assert that it developed out of the more ancient law relating to a “salman," or agent, such as an executor who was salman to distribute the estate.11 The first view is adopted by those historians who argue that the technical English word "use" is derived from the Latin "opus," and not from the Latin “usus.” 12

But the practicing lawyer is remotely concerned with the precise origin of the English law of trusts. We are content to know that at the end of the reign of Henry V (A. D. 1430), the Lord Chancellor's jurisdiction over uses at the suit of the beneficiary, or cestui que use, was a fixed fact.13 For, as Justice Story states, not onehalf of the doctrines of the common law go back of the reign of Queen Elizabeth.14 The law of trusts developed slowly and, indeed, was not on a good footing in England until Lord Nottingham's 159; cf. Scrutton, Rom. Law and Law of England, 156, 157.

This section of this act (Chap. 320, Laws of 1830) does not appear to be expressly repealed by chap. 547, Laws of 1896, but it was intended so to be, and the repeal of 1 R. S. 728, $ 55, repealed the amendment.

10 Willis, Estate of Trustees, chap. 1; Kirly, Hist. of Eq. 78; 2 Black. Comm. 271; Digby, Hist. Real Prop. 271; Viner's Abr., Uses; 1 Spence, Eq. Juris. 446; Tomlin's Lyttleton, 521; Markby, Elements of Law, 158,

11 Mr. Justice Holmes, I Law Quar. Rev. 162; Ames, 21 Harv. Law Rev., at p. 263.

12 2 Pollock & Maitland, Hist. Eng. Law, 226; 8 Harv. Law Rev. 127.

13 I Law Quar. Rev. 162; 1 Spence, Eq. Juris. 343; cf. Ames, 21 Harv. Law Rev., at p. 265. 14 § 646, Eq. Juris.