might have called for a sale), in order to preserve the estate (a).

But it must be observed, that from the mere fact of consanguinity between the owner of the particular interest, and the persons in remainder, or as it is called the situation of the estate, the inference of an intention to exonerate does not arise. Accordingly, in Wyndham v. Earl of Egremont (b), a charge which had been paid off by tenant for life, who was also entitled to the absolute reversion, subject to remainders in tail to his first and other sons, was held not to be merged for the benefit of the heir, to whom (there being no issue) the estate descended.

In the case of an encumbrance paid off by tenant in tail, the presumption may be met by showing, that the security was assigned in trust for the party and his executors and administrators. For as an assignment in trust to attend the inheritance is deemed conclusive of an intent to disburden the estate, an assignment in the manner now supposed is accounted evidence of intent to keep the charge on foot for the benefit of the personal representatives (c). It also seems, that a request to the encumbrancer to transfer, or steps taken to obtain a transfer from him, of the security, or a declaration of trust executed by the encumbrancer, to hold specifically for the use of the tenant in tail, will lead to the same conclusion (d). Again, the circum

(a) Jones v. Morgan, 1 Bro. C. C. 206. See also 3 Bro. C. C. 126; 1 Ball and Be. 143.

(b) Amb. 753.

(c) See 1 Ves. 260, 480.
(d) See 3 Swans. 199, 200.

stance of the party mistaking the nature and extent of his interest, will, in some cases, be effectual to rebut the presumption. Hence, where tenant in tail, imagining himself to possess the fee, paid off a mortgage (but without taking a re-assignment of the term), and then settled the estate on his daughters; the mortgage, after his death, was held, as against the remainder man, to continue a charge on the property (a). And so in a late case, where tenant in tail supposing, that under an appointment made in exercise of a power, but which was defectively executed, he had the absolute ownership, discharged a sum due from the estate for portions; it was decided, that as no surrender of the term had been made, the encumbrance remained in existence for the benefit of his personal representatives (b).

It may be added, that where there are several encumbrances, the amount of which equals, or nearly so, the value of the estate on which they are secured, the payment of one of the early charges by tenant in tail will not necessarily be taken as made with a view to exoneration; since the interest of the party may be materially concerned in preserving the debt alive (c).

(a) Kirkham v. Smith, 1 Ves.

258.

(b) Earl of Buckinghamshire v. Hobart, 3 Swans. 186.

(c) See Forbes v. Moffatt, 18 Ves. 384.

CHAPTER IV.

PRESUMPTIONS OF LAW CONTINUED.

Of the Presumption with respect to the beneficial Ownership; first, where a Purchase made by one Person is completed in the Name of another; and, secondly, where an Estate paid for by two or more is conveyed to them as Joint Tenants.

CONCERNING purchases in the names of third persons, it was laid down by Lord C. B. Eyre, as the clear result of all the cases, that, whether the estate be freehold, copyhold, or leasehold; and whether the conveyance be taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser,-whether in one name or several,— whether jointly or successivè;-the trust or beneficial ownership appertains to the man who advances the purchase money (a). A similar rule holds in regard to personal property. Thus stock in the public funds, bought in the name of a stranger, belongs primá facie

(a) See 2 Cox, 93. The cases establishing this proposition are collected in Sugden on Purchases, c. 15, s. 2.. As to the evidence

necessary to make out the trust, see in addition to the above work, 2 Madd. on Equity, 2d edit. 114 ; 1 Sand. on Uses, 3d edit. 258.

to the party paying the consideration (a). And so in the case of an annuity, or of money secured by bond, but made payable to an indifferent person; these, in the first instance, are held to be trusts for him who effects the purchase, or advances the loan (b).

This doctrine appears to rest on a foundation analogous to that of resulting uses at common law. As, there, on a conveyance being made to a stranger, unless for valuable consideration, the use is held to revert to the grantor by implication, because of the improbability that an absolute gift should be designed; so, here, the constructive trust in favour of the purchaser, is drawn from the improbability of the purchase being intended as a gratuity to the nominee.

It is observable that an opinion formerly prevailed, grounded on the language of Lord Hardwicke, in Crop v. Norton (c), that the doctrine of constructive trusts did not apply to cases of a joint advance by two persons, on a purchase completed in the name of only one of them. But the case referred to cannot be depended on as an authority for such opinion: the decision did not rest on any general principle, but on the particular circumstances; and in a late case where the precise point arose, the contrary proposition was distinctly and solemnly established (d).

(a) Rider v. Kidder, 10 Ves. 360; George v. B. of England, 7 Price, 646.

(b) Loyd v. Read, 1 P. Wms.

607; Ebrand v. Dancer, 2 Cha.
Ca. 26; 1 Eq. Abr. 382, S. C.
(c) 2 Atk. 74.

(d) Wray v. Steele, 2 Ves. and Be. 388.

The principle above stated, that the beneficial interest in a purchase belongs to the person who pays the money, being, however, merely the intendment of law, obtains only where neither the expressed meaning of the party, nor conflicting legal rules, oppose its application. If the intention be manifest to confer a bounty on the grantee, or to make him a trustee for others, it will effectually exclude the primary supposition. So if the trust by implication would contravene the policy of an Act of Parliament: and, therefore, while the laws against Papists were in full rigour, no constructive trust was permitted in favour of Roman Catholic purchasers, buying in the names of third persons (a). And again, as under the existing laws in regard to ships, the registry constitutes conclusive evidence of ownership, all implied trusts as to such property are necessarily excluded (b). This rule, it deserves remark, extends even to the case of ships bought by a partnership, where the assignment is taken in the name of one of the partners only (c).

The presumption which the law makes in favour of the person who advances the purchase money may be met in various ways. We have already shown, that it cannot arise in cases in which it would contradict either the plain language of the parties, or the policy

(a) See Redington v. Redington, 3 Ridgw. P. C. 185.

(b) Ex parte Houghton, 17 Ves. 251. If, however, the registered owner of a ship suffer it to remain in the power, order, and disposition

of another person who becomes bankrupt, the ship, it seems, will pass, by the assignment, to the assignees. Monkhouse v. Hay, 8 Pri. 256.

(c) Ex parte Yallop, 15 Ves. 60.