71 Ala. 159 | Ala. | 1881
It would seem clear, beyond doubt, on well settled principles, that the appellants, Whaley and Massey, had no resulting trust or equity in the land described in the bill as having been conveyed to Mrs. Whaley, the mother of appellants.
The rule is properly stated in Preston v. McMillan, 58 Ala. 84, that when a trustee invests trust funds or effects, held by him in a fiduciary capacity, in land or other property, and takes the title in his own name, or in the name of a stranger with notice of the trust, so long as such funds can be identified by being traced into specific property, the cestui que trust can claim the entire property, if paid for exclusively with his money, or he can assert an equity to re-imbursement pro tanto for his moneys so misapplied by the trustee. In cases of this nature, it is wholly immaterial as to whether the money was paid cut the time of the purchase or afterwards. Though often classified in the books as a resulting trust, such a designation is not technically or strictly accurate. It is a trust implied or created by law, originating in the right to pursue a trust fund, through its’ various transmutations, into a new investment made in violation of the duties of the trustee. 1 Perry on Trusts, §§ 127-8; 2 Ib. §§ 836-7; Thames v. Herbert, 61 Ala. 340; 1 Lead. Eq. Cases, 277-8; Preston v. McMillan, sapra.
In the case, however, of an ordinary or technical resulting trust, where no question arises as to a misappropriation of trust funds, or their pursuit into new investments, but money or property without fiduciary ear-marks is paid or invested by one person and the title is taken in the name of another, the money
It is, furthermore, indisputable law, that if one person advance the purchase-money of property, by way of a loan, to the vendee, and conveyance of title is made to the latter, no trust will result in favor of the one who thus advances the money. The very fact of a loan contradicts and rebuts the implication of a trust which might otherwise be presumptively raised by law. 1 Perry on Trusts, § 133; Six v. Shaner, 26 Md. 415; Lehman v. Lewis, 62 Ala. 129; Gibson v. Foote, 40 Miss. 788; Chapman v. Abrahams, 61 Ala. 108.
The application of these principles is deary fatal to the equity of complainants’ bill. The money, or claim, as the case may be considered, advanced by appellants to Mrs. Whaley during her life-time, and used by her in part payment for the land purchased from her husband’s estate, was a mere loan aiid nothing more. The promissory notes, given for it and bearing interest, are conclusive on this point, and are utterly inconsistent with the theory of a resulting trust in favor of the lenders of the money. The recital in the notes as to the purpose for which the money was to be used in no wise changed this aspect of the transaction.
The money was advanced, too, long after the purchase of the land, and after the debt for the purchase-money had been created by Mrs. Whaley, the vendee.
In view of these facts, it was not permissible to receive parol evidence for the purpose of proving an express agreement to charge the lands with the money advanced. Parol proof is not admissible for such a purpose. Where a trust does not arise from the transaction itself so as to result by mere implication, it can not be created by the express agreement of the parties, for such agreement must be in writing and can not rest in parol; otherwise it would be in the very teeth of the statute of frauds. Code, 1876, § 2199; Patton v. Beecher, 62 Ala. 579; 1 Perry on Trusts, § 135.
It is unnecessary to consider the soundness of the reason assigned by the chancellor for the dismissal of the bill. It was clearly without any equity, and we prefer to rest our judgment on this less questionable ground.
Affirmed.
