The opinion of the court was delivered by
Peck, J.
There is no dispute in the pleadings or evidence but that the intestate, some few years prior to 1836, purchased the premises in Groton village, consisting of about half an acre of land, on which he built a dwelling-house, and on which were some outbuildings; that ho and his family had resided on the premises several years prior to 1836, and that in 1836 he still owned the premises, but that the legal title was in Kimball; that in 1836 it was thought best to have a conveyance from Kimball, and that in consequence of the intestate being at times somewhat improvident, the defendant, his eldest son then about twenty-two years of age, was solicited by the intestate and his family to have the deed of *689the premises from Kimball taken to the defendant for the benefit of the intestate, and the more effectually, as they thought, to preserve the place as a home for the intestate and family consisting of a wife and minor children ; that the deed was so taken to the defendant, to hold for the benefit of the intestate by verbal agreement between the intestate and the defendant. It is not claimed by the defendant that he ever paid any consideration for the-deed, or that he ever agreed to pay any thing. But the defendant claims in his answer and testimony that it was further agreed, that on the deail of his failer and mother, the premises were to be his, the defendant’s, property ; the orator claims that the defendant was to have no beneficial interest in the premises, but was to hold the title in trust for the intestate and his wife. It being admitted by the answer, as well as proved, that the intestate paid the whole consideration, and that the defendant neither paid nor agreed to pay anything, it is a case of an implied-trust in favor of the party who advanced the consideration, and hence parol evidence as to the understanding and intention of the parties is not excluded by the statute of frauds. This was substantially all the property the intestate owned at the time the deed was taken to the defendant. But without going into an examination of the testimony, it is sufficient to say, that upon a careful examination of the proofs, the direct evidence and the circumstances .disclosed in the testimony, we are satisfied that the balance of evidence is that the defendant took the conveyance from Kimball simply in trust, as is claimed on the part of the orator, and that there was no agreement or mutual understanding that the defendant should have any beneficial interest in the premises. If the defendant had any different understanding, it was not justified by what was said between the parties, or by the facts and circumstances attending the transaction.
The next question is, what effect upon the rights of the parties was produced by the subsequent purchase of the Wm. E. Clark place, and the turning in of this Kimball place in part payment. It appears that about 1845, by mutual arrangement between the defendant and his failer and mother, the defendant purchased a small farm a short distance out of the village, called the Wm. E. *690Clark place, at the price of $700, and this Kimball place was turned in, in part payment, at $300 ; and the intestate and his wife and a minor son thereafter resided on that farm a number of years. We find that no different arrangement was made in reference to the right of the intestate in the Wm. E. Clark place from that which had existed in reference to the Kimball place, and that this was but an exchange on the part of the'intestate of the Kim-ball place for an interest equal in amount in the Wm. F. Clark place. The deed of the Wm. E. Clark place having been taken to the defendant, he holds three sevenths of the last named premises, (being the premises in question,) in trust for the intestate, precisely as he previously held the Kimball place. It appears that just previous to the time that the defendant took the deed of the Kimball place, he, or he and his failer, purchased a small place in Groton village, called the Bean place, for $275, and the intestate furnished to the defendant money to pay towards the same, some $80 or $87 ; the defendant paid the residue out of his own moans. There is testimony on the part of the orator, to the effect that that was a joint purchase by the intestate and the defendant, and that although the deed was taken to the defendant, the intestate had an equitable interest to the amount that he paid or furnished the means to pay. If this is so, then the interest of the intestate in the premises in question would be increased by that amount, as it appears that that place was sold by the defendant and the avails paid towards the premises in question. But the testimony on the part of the defense is, that the intestate gave the $80 or $87 to the defendant as a gift, saying, that by giving his other two boys one year of their time before twenty-one years of age, as he intended to do, he could do as well by them. We think the evidence on this point will not warrant the conclusion that a trust exists in reference to the premises in question, based on this advance of the $80 or $87 by the intestate. It appears also' that at the time the defendant purchased the premises in dispute, (the Wm. E. Clark place,) the intestate had two cows on that place, which by agreement went in part payment for the premises, and the orator claims that to the extent of the price at which they were reckoned in payment, a trust in the premises was thereby *691created in favor of the intestate. But we think the weight of the evidence is, that that was not so intended or understood at the time. As the defendant’s mother died before her husband, it is unnecessary to inquire what her rights would have been had she survived him, The orator claims that the defendant should account for rents and profits of the intestate’s share of the premises from the time he, the defendant, moved on to the premises, about 1858. It is manifest from the manner in which the intestate and the defendant have occupied the premises, up to about the time of the intestate’s decease pending this suit, that no basis of accounting for rents and profits could be adopted that would be likely to approximate nearer to justice in this matter than to leave it where the parties have left it. If each has not enjoyed the rents and profits in exact proportion to his interest in the premises, it is as near that as the parties intended. It is obvious that no accounting for rents and profits was ever contemplated by the parties, and none should be ordered, up to the deail of the intestate. But for the time since the intestate’s deail, the defendant must account for the rents and profits of the three undivided sevenths of the premises belonging to the intestate at his decease, and which is the proper estate of the intestate ; and the orator is entitled to partition or severance of said three sevenths, in such manner as the court of chancery shall deem just and equitable on the basis above stated; or that such decree be made as will give the orator as administrator an equivalent for said three sevenths, and the rents and profits thereof since the decease of the intestate. As to the other dealings mentioned in the pleadings and evidence, neither party is entitled to an accounting or decree. The question of costs in the court of chancery to be disposed of by that court.
Cause remanded to the court of chancery to carry out the decree thus modified.