[*]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 successive ;-the trust or beneficial ownership appertains to the man who advances the purchase money (a) (1). A similar rule

(a) See 2 Cox, 93. The cases necessary to make out the trust, establishing this proposition are see in addition to the above work, collected in Sugden on Purchases, 2 Madd. on Equity, 2d edit. 114; c. 15, s. 2. As to the evidence 1 Sand. on Uses, 3d edit. 258.

(1) Perry v. Head, 1 Marsh. 47. Boyd v. M'Lean, 1 Johns. Ch. 582. Bottsford v. Burr, 2 Johns. Ch. 409. Livingston v. Livings

holds in regard to personal property. Thus stock in the public funds, bought in the name of a stranger, belongs prima facie [*]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

(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.

Me

ton, 2 Johns. Ch. 540. Hart v. Hawkins, 3 Bibb. 506. Stephenson v. Stephenson, 3 Bibb. 15. Redwood v. Riddick, 4 Munf. 222. thodist Episc. Church v. Jaques, 1 John. Ch. 450.

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 (a) (1).

[*]The principle above stated, that the beneficial interest in a purchase belongs to the person who pays the money, being, however, me rely 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 (b). 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 (c). This rule, it deserves remark, extends even to the case of ships bought by a partnership, where the

(a) Wray v. Steele, 2 Ves. and remain in the power, order, and Be. 388. 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.

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

(c) Ex parte Houghton, 17 Ves. 251. If, however, the registered owner of a ship suffer it to

(1) Hart v. Hawkins, 3 Bibb. 506.

assignment is taken in the name of one of the partners only(a).

The presumption which the law makes in favour of the who advances the purchase money may be person 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 [*]of an Act of Parliament: and it is evident, upon general principles, that a like decision would be made, where such a presumption would be subversive of the policy of the common law. It may likewise be contradicted by proof of the particular intention (b), or of an intention in favour of the party in whose name the conveyance or grant is made. And for this purpose, whether the subject of purchase be real or personal estate, parol evidence is admissible. Thus declarations made in the course of conversation with others have, on several occasions, been held sufficient (c); and in one instance the testimony of even a single witness was relied upon (d). For although it is a general principle, that parol evidence shall not be received to contradict a written instrument; yet where, as in the cases we are now considering, the law raises a presumption which is against the apparent purpose of a written instrument, parol

(a) Ex parte Yallop, 15 Ves. 60. (b) See and consider the principle of Hummerston's case, Dyer, 166 a, note; of Lord Anglesey v. Lord Altham, Salk. 676; and of Thrustout v. Peake, 1 Stra. 12, 17. See also per Lord Mansfield, Roe v. Popham, 1 Doug. 25. (c) Lamplugh v. Lamplugh, 1 P. Wms. 111, 113; Goodright v.

Hodges, 1 Watk. on Cop. 227; Lofft, 230, S. C.; Taylor v. Alston, cit. 2 Cox, 96-97; Redington v. Redington, Ridgw. P. C. 178; Rider v. Kidder, 10 Ves. 360; George v. B. of England, 7 Pri. 646.

(d) Maddison v. Andrew, I Ves. 60-61.

evidence is held admissible to repel that presumption; because it is adduced, not to contradict or vary, but to give effect to and sustain the apparent and literal import of the deed (a) (1). The fact of an enjoyment by the nominee inconsistent with his taking only as trustee, may also, it seems, be alleged in attestation [*]of a claim by him to the absolute interest (b). But as the statute of frauds (c) expressly requires all declarations or creations of trusts of land to be in writing, and to be signed by the party entitled to declare such trusts, parol evidence cannot be received for the purpose of carrying the beneficial ownership of real estate, purchased in the name of a third person, to strangers. Whether, by reason of the statute in this provision not extending to personal estate, parol testimony be sufficient to raise a trust in such property in favour of individuals not immediately concerned in the transaction, does not appear to be settled (d).

The presumption may also be repelled by circumstances, out of which a conflicting presumption of a higher nature arises. Thus if such a relation exist between the person who advances the purchase money, and him in whose name the purchase is complet

(a) Hurst v. Beach, 5 Madd.

351.

(b) Delane v. Delane, 7 Bro. P. C. by Toml. 279. See also 1 P. Wms. 608; 10 Ves. 367.

(c) 29 Cha. 2, c. 3, s. 7.

(d) See Nab v. Nab, 10 Mod. 404; Fordyce v. Willis, 3 Bro, C. C. 576.

(1) Bottsford v. Burr, 2 John. Ch. 409.

Steere v. Steere, 5 John.

Ch. 1. St. John v. Bendict, 6 John. Ch. 111. Jackson v. Faller, 2

Wend. 465.