The plaintiff says he is the equitable owner of the farm in question, and that the defendant, as residuary legatee under the will of John Crowley, holds the legal title. The defendant denies that the plaintiff has any title, and says that John was the absolute owner of the farm, and she is now owner by reason of being such residuary legatee. The issue is between the two parties as individuals. The estate of John has no interest in it whatever. The defendant's position in the suit is no more representative of the estate than it would be if her title depended upon a quitclaim deed from John to her. Such being the facts, the provision of the statute (P. S., c. 224, s. 16), by which the surviving party to a cause is not allowed to testify as to facts occurring in the lifetime of the deceased, unless his executor or administrator elects to testify, does not apply; and there was no error in the ruling by which the plaintiff was accepted as a witness. P. S., c. 224, s. 13.
A trust in the farm in favor of the plaintiff would result by implication of law if it was purchased with the plaintiff's money and the title was taken in John's name, not to effect a gift, but to overcome disabilities arising from the plaintiff's minority, — both the plaintiff and John understanding that the farm was to be the property of the plaintiff. Page v. Page, 8 N.H. 187; Hopkinson v. Dumas, 42 N.H. 296; Pearl v. Whitehouse,52 N.H. 254; Hall v. Congdon, 56 N.H. 279; Ferrin v. Errol, 59 N.H. 234. While these facts might perhaps be reasonably inferred from those reported, they are not specifically found. It is not the province of this court to determine a question of fact, however strong or conclusive upon the one side or the other the evidence recited in the case may seem to be, and though all the evidence is reported. Jones v. Aqueduct, 62 N.H. 488; Metcalf v. Weed, 66 N.H. 176; Martin v. Livingston, 68 N.H. 562; Friel v. Plumer, 69 N.H. 498; Champollion v. Corbin, 71 N.H. 78. The reserved case in Jones v. Aqueduct expressly stated that it contained a statement of "all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or is not a reasonable use" (66 N.H. 178); and yet the court held that the question of reasonable use was a question of fact and must be determined at the trial term. It is doubtful if the report in the present case is as comprehensive of the testimony and circumstances bearing upon the question of a resulting trust as was that before the court in Jones v. Aqueduct bearing upon the question there considered; but assuming that it is, the findings as to the facts necessary to constitute such a trust should be made at the trial term.
The defendant says that upon the facts disclosed in the report the
$300 paid by the plaintiff toward the farm at the time of the purchase was John's money as a matter of law, because derived from the plaintiff's labor while he was a minor and receiving support from his father. Although John would be entitled to the plaintiff's earnings while a minor, in the absence of any agreement or understanding to the contrary, he was at liberty to allow the plaintiff to have his earnings for his own benefit. John's consent that the plaintiff's earnings should belong to him would bind John, and give the plaintiff a good title to them as against John's devisee. Johnson v. Silsbee, 49 N.H. 543. Whether John gave such consent is a question of fact. If he did, the $300 belonged to the plaintiff, and his case to that extent is proved. Without this fact, he is not entitled to the relief sought.
The further point is made by the defendant that a trust did not result in favor of the plaintiff because he did not pay the entire consideration for the farm at the time of the purchase; that his payment of John's note subsequently would not operate to raise the trust. If the plaintiff paid $300 of his own money toward the farm at the time of the purchase, understanding that he was not giving the money to his father, a trust would result in his favor pro tanto, even if the balance of the purchase money was so paid as not to raise a resulting trust on its account; that is to say, John would hold the title to six undivided seventeenths of the farm in trust for the plaintiff. Pembroke v. Allenstown, 21 N.H. 107; Tebbetts v. Tilton, 31 N.H. 273; Hail v. Young, 37 N.H. 134. Unless there was an agreement between the plaintiff and his father, at the time the note and mortgage were given by the latter, that the plaintiff should pay the note, the payment of it subsequently by him would not raise a resulting trust in his favor in the fractional part of the farm thus paid for. Francestown v. Deering, 41 N.H. 438; Johnson v. Silsbee, 49 N.H. 543, 547; Bodwell v. Nutter, 63 N.H. 446; Fessenden v. Taft, 65 N.H. 39. But if the plaintiff induced his father to give the note to enable him to make the purchase, and promised to pay it, it will be effective in raising the implication of a trust. The material fact is the payment of the consideration by the cestui que trust at the time of the purchase. It matters not how it is paid, whether by money on hand, or borrowed, or by the promise or obligation of the cestui que trust himself, or of some other person procured by him for the purpose. The principle is well illustrated by the cases of Pearl v. Whitehouse, 52 N.H. 254, and Ferrin v. Errol, 59 N.H. 234, in which the alleged trustees advanced the whole or a portion of the purchase money at the request of the alleged cestuis que trustent, with the understanding that the former should hold the title of the land until the advances were repaid. If the plaintiff had
avoided paying the note by availing himself of his infancy, or of the statute of frauds, the foundation for a resulting trust would fail; but as he has paid the note, the infirmity in the original agreement, if it be found that he made one, would become immaterial. By the agreement and its execution, he in effect would pay the purchase money for the land at the time of the conveyance.
Another point made by the defendant is, that if there was a trust it was an express trust, and being created by parol, is void by virtue of the statute of frauds. The fact relied on to constitute an express trust is that the purchase was made by the plaintiff to make a home for his parents during their lives. So far as appears, this was merely the reason why the plaintiff made the purchase. He did not attempt to make a contract by which his parents were to have a life estate in the farm. Their occupancy of it was to be by his license, and was terminable at his will. They were to have no rights in it, and no trust in respect to it in their favor was contemplated by the plaintiff or them. If it be so, this position of the defendant is not tenable.
The defendant further says that if there was originally a resulting trust, the plaintiff is now barred from any remedy to enforce it by the statute of limitations or laches. The statute does not ordinarily run against an express trust until there is an open disavowal of the trust, or some other breach of faith which may give rise to an action. It runs against a constructive trust arising from the commission of fraud as soon as the fraud is committed, unless the fraud is concealed from the beneficiary, in which case it will not begin to run until he has actual or constructive notice of the fraud. The reason seems to be that the fraud from which the trust originates is "as complete and absolute a denial of the rights of the injured party as it is possible to have; and every day which passes without reparation of the injury is a continuation or repetition of it." Howell v. Howell, 15 Wis. 55; Broder v. Conklin,121 Cal. 282, 288. "Where a trust results by implication of law from the payment of the consideration for property conveyed to another, the statute begins to run in favor of the holder of the legal title against the equitable owner at the time of the conveyance, if there is no recognition of the rights of the cestue que trust; and if his rights are recognized, then at the time when the holder of the title begins to hold adversely." Currier v. Studley, 159 Mass. 17, 20; Dow v. Jewell, 18 N.H. 340; Springer v. Springer, 114 Ill. 550; Reynolds v. Sumner, 126 Ill. 58; Condit v. Maxwell, 142 Mo. 266; Per. Tr., ss. 141, 865; Sto. Eq. Jur. s. 1520. In such cases the title to the property is generally taken in the name of the trustee, with his knowledge and approval and upon his recognition of the relation thereby
created. It is hardly conceivable that a trustee should fail to recognize the trust at the time of the conveyance, unless he intends to deceive the beneficiary and acquire an absolute title by fraud. In that event, there would be a practical disavowal of the trust at the outset, and the statute would begin to run as in the case of a constructive trust. But so long as the trustee recognizes the trust, the beneficiary may rely upon the recognition, and ordinarily will not be in fault for omitting to bring an action to enforce his rights. The case then resembles an express trust of a continuing nature, and is subject to the statute of limitations in like manner. If the trustee is in possession by permission of the cestui que trust, the possession will be that of the latter. Kane v. Bloodgood, 7 Johns. Ch. 90, 121. It will not become adverse to the cestui que trust until the trustee disavows the trust, or asserts some right to the property inconsistent with it, and the cestui que trust has knowledge of the disavowal or assertion, or from the circumstances ought to have learned of it. Newmarket v. Smart, 45 N.H. 87; Hall v. Stevens, 9 Met. 418; Rung v. Shoneberger, 2 Watts 23; Fawcett v. Fawcett, 85 Wis. 332; Springer v. Young, 14 Or. 280. If there was a resulting trust in this case, the questions whether John recognized the plaintiff's rights at the outset, — if so, whether he subsequently changed his position and disavowed the trust, — if so, when the change was made, — and whether the plaintiff knew of it or under the circumstances ought to have learned of it, — are all questions of fact that cannot be determined in this court. It is sufficient to say that the facts reported do not conclusively show that the plaintiff's remedy would be barred, if he originally had one.
According to the provisions of the case, the defendant should have judgment. But justice seems to require that the plaintiff should have a further hearing if he desires it; and to afford him an opportunity to apply for such hearing, the order made here is,
Case discharged.
All concurred.