28 Ill. 454 | Ill. | 1862
It is insisted upon the argument, that the evidence in this case shows that a trust was created in favor of complainant, by his purchase of the premises by defendant. It was not an express trust, as that can alone be created by written agreement executed by the owner. Such a trust cannot be created by a person having no title to the premises. It is, of course, impossible for a person not having title, to transfer any interest in a thing to another person. In this case, all of the negotiation in reference to complainant acquiring an interest in the premises, occurred before defendant became invested with any title, or even such a contract as he could enforce against Laflin. Defendant at the time only had an offer from Laflin to permit him, upon complying with the terms of the offer, to become a purchaser of one-half of the lots. This offer was not accepted by him until several months subsequent to his proposition to complainant.
Was a resulting trust created by this transaction ? Such a trust is always implied from the acts of the parties, or is created by parol agreement, and acts performed in pursuance of such an agreement. It is clearly illustrated by Chancellor Kent, who says of a resulting trust, that “ when an estate is purchased in the name of A, and the consideration money is actually paid by B, there is a resulting trust in favor of B, provided the payment of the money is clearly proved. The payment at the time is indispensable to the creation of the trust; and this fact may be established, or the resulting trust rebutted, by parol proof.” 4 Kent Com. 305. This is the well recognized doctrine established by adjudged cases. Thus it is seen that to create a resulting trust, the purchase money must belong to one person, and the purchase made in the name of another. The purchase money actually paid at the time draws to it the equitable right to enjoy the benefit of the purchase, and although the legal title may be transferred to a different person, a court of chancery will execute the trust, and prevent the perpetration of a fraud.
There was no money paid by complainant on the purchase, when it was made. The money, which he advanced, was before the contract was closed with Laflin, and complainant had not then, if he ever had, agreed to become a party to the purchase. It was advanced as a loan, with the option, if he chose, to convert it into an advance on the purchase, if Laflin’s offer was accepted. There is no evidence in the record, that he ever gave notice that he so regarded the advance of money, at any time before the conveyance was made to defendant, or before the remainder of the purchase money was paid. He made no other advance of money to meet the payments, nor did he offer to do so, and has not tendered his proportion of the purchase money, if he was a purchaser. It seems clear that he regarded it a loan, until it was demonstrated that the purchase was profitable. He on different occasions denied that he had any interest in the premises. Had he treated the transaction as a purchase, and made the payments as they fell due, the transaction might have created a resulting trust. But failing to do so, he cannot be regarded as having any interest in the land.
The decree of the court below is affirmed.
Decree ajifwrrbecL.