case of the same kind, where the father, on putting in his son's name, as grantee for life in remainder, surrendered immediately afterwards to the use of his own will, that was held to convert the son into a trustee (a): Possession taken by the father at the time of the purchase being completed, with subsequent receipt of the rents and profits, has also been said to demonstrate an intention to retain the equitable interest. But this rule, if generally sustainable (for there are contradictory authorities), must be understood with the following restriction; that if the purchase be in the name of an infant, the father's possession during the infancy will not alter the legal presumption, such possession being referrable to his right as guardian (b). Neither [*]will the presumption be affected by the father's expending money in necessary repairs or in improvements; for such are only particular parts of the general advancement (c). But if the child be an infant at the time of the purchase, and the parent continues in possession after the minority terminates; or if the child be adult at the time of the purchase, and the parent takes possession and acts as owner from the first; the question is open to very different considerations. For with regard to the former of these cases, that of a father's purchasing in the name of an infant son, and retaining possession after the mi (a) Prankerd v. Prankerd, 1 19; Taylor v. Taylor, 1 Atk. 386; Sim. and Stu. 1. see also 2 Atk. 480; 2 Cox, 95 ; 2 Swans. 600. (6) Lamplugh v. Lamplugh, 1 P. Wms. 113; Loyd v. Read, ib. 608; Jennings v. Selleck, 1 Vern. 467; Mumma v. Mumma, 2 Vern. nority ceases, it was said in Loyd v. Read (a), that such circumstance was evidence of a trust for the father, because the child was of years of discretion to claim his right. But this reason appears to be far from satisfactory. A parent, who buys an estate in his child's name, though for the purpose of securing it to him as a future provision, frequently, if not always, means to retain a life interest. And as to the child's power, when of age, to assert his right, and his omitting to do so, that affords but little ground for concluding against his claim. It is seldom that a grown up son so far loses a sense of the gratitude and respect he owes his father, as to compel him by law to deliver up a possession, with the legal right to which the father had voluntarily invested him. But further; the dictum in Loyd v. Read, seems directly opposed to the determination in Lady Gorge's case (b). [*]In that case, it appeared that the Earl of Lincoln, who had purchased a manor in his infant daughter's name, but always kept the courts, and made leases, in his own name, and had regularly received the rents and profits, after enjoying the property for some years sold it to Sir S. Montague. The daughter, Lady Gorge, it is stated in the report, never questioned the sale during her father's life-time (an expression seeming to imply her power to have questioned it, in other terms to imply her having attained the age of twenty-one); yet after his death she succeeded in establishing her title to the manor as an advancement; the case being held not to come within the meaning of the 27th Eliz. c. 4. (a) 1 P. Wms. 608. Swans. 600. See also Mumma (b) Cro. Car. 550, cited; 2 v. Mumma, 2 Vern. 19. As to the question of advancement in cases of purchases in the name of an adult child, where the father enters into and retains possession from the first, it is said in Lord C. B. Gilbert's Lex Prætoria (a), that the child must be considered a trustee, because being of full age he is emancipated from the power of his father. And this doctrine receives countenance from the case of Woodman v. Morrel (6). There a father purchased a copyhold in the name of his daughter (who, it seems, was of age), and received the rents for twelve years. Afterwards getting into debt, and being desirous to sell, he preferred his bill against the daughter and her husband, to obtain a surrender; and Mr. Justice Atkins, who sat for the Lord Chancellor, being of opinion that a trust resulted to the father, decreed [*]accordingly. And in the late case of Murless v. Franklin (c), Lord Eldon laid it down generally, that possession, taken by a father at the time of a purchase in his son's name, showed the father's intention to purchase for his own use. Had the only authority for the proposition in the Lex Prætoria been the decision of Mr. Justice Atkins, it might not, perhaps, for the reasons about to be stated, have been considered entitled to much weight though supported as it is, by the dictum in Murless v. Franklin-a dictum proceeding from so eminent a Judge-there is much cause to think that the point will be ultimately settled in the affirmative. It may, however, be remarked, that the reason assigned in the Lex Prætoria does by no means ap (a) Lex Præt. 271. (b) 2 Freem. 32. (c) 1 Swans. 17. pear conclusive. A son, who has attained twentyone, may be as much dependent on his father, and as much under his control, as if still a minor; and the ground of distinction hitherto generally taken and acted on in questions of advancement, has been, not the fact of the son's being above or under age, but that of his being, or not being, before provided for (a). And although great weight must be attributed to the dictum of Lord Eldon, yet it is open to remark, that not only is it too general in not being restricted to the case of an adult child, but it seems opposed, in the general principle, to preceding dicta and judicial determinations. Thus it was said by Lord Nottingham, that in all cases of asserted trusts between father and son, contrary to the consideration [*]and operation of law, the same ought to appear upon very plain, coherent, and binding evidence ; and not by any argument or inference from the father's continuing in possession, and receiving the profits, which sometimes the son may not in good manners contradict, especially where he is but advanced in part (b). And, consistently with this, in a case where lands bought by a father were conveyed to himself and his son as joint tenants, but the father continued in possession of the whole till death, a claim by his devisee, who contended that the son was only named as trustee, was disallowed: Lord C. J. Hyde, sitting in equity, said, that the purchase must, primâ facie, be intended an advancement for the son, and not presumed a trust, unless declared so; and that it was anciently the way to join the son in a purchase to (a) Elliot v. Elliot, 2 Cha. Ca. 231, 2. (b) See Finch, 340; 2 Swans. 600; 2 Cha. Ca. 231. avoid wardship :-Which decree was afterwards affirmed by Lord Chancellor Clarendon (a). A similar decision, under circumstances still more strongly repelling a presumptive advancement, was made in the case of Back v. Andrew (b). The presumption in favour of advancement, where a father purchases in the joint names of himself and a child, though the former alone receives the profits, (which governed the two cases last mentioned,) has not, indeed, been considered so forcible in later times, as formerly (c). In Stileman v. Ashdown (d), [*]where the child was even an infant, Lord Hardwicke said, that such purchase did not answer the purpose of an advancement, for it entitled the father to the possession of the whole till a division of the estate, and to a moiety absolutely after a division, besides the father's taking a chance to himself of surviving to the other moiety; and that if the son died during his minority, the father would be entitled to the whole by virtue of the survivorship, which the son, being an infant, could not prevent by severance. His Lordship, accordingly, in that case, relieved a judgment creditor of the father's against the title by survivorship of the son. But the reason for this decision does not appear to possess that weight which generally belongs to Lord Hardwicke's judicial arguments. A joint tenant, undoubtedly, in a legal sense, is entitled to a possession of the whole estate; he is said to be seised per my and per tout, and can give a valid discharge to (a) Scroop v. Scroop, 1 Cha. Ca. 27; 2 Swans. 599; 1 Eq. Abr. 381, p. 6. (b) 2 Vern. 120. See also Crisp v. Pratt, Cro. Car. 548. (c) See 1 Ves, 76. |