Open main menu

Page:Harvard Law Review Volume 1.djvu/197

This page has been proofread, but needs to be validated.

oral agreement, and since the Court found the intention of a trust as a fact, it held that the parol agreement for the trust did not defeat the trust which the law inferred from the facts. The whole transaction was treated as one in order to ascertain the fact of intention. This was finally determined by treating the brother’s note as a loan to the sister for whose benefit it was given. For the Court says: “Whether she is entitled to one-half the property or not depends upon the view we take of the mortgage debt of $265 (the amount of the note). If that is to be regarded solely as the debt of the respondent (brother), and the petitioner (sister) as not then responsible for any part of it, either to the respondent or the grantors, then she had no title in respect to that portion of the purchase-money. But if it is to be regarded as her debt in part, she being either jointly liable, as between themselves, with the respondent, or liable to the respondent for one-half the amount, then her title to one-half of the property is complete.”

In Morey v. Herrick,[1] two men agreed to go halves in payment and ownership, and one took the land in his own name. For the land was given a note, signed by one of them, and by a third party, who signed with him at their request. The one whose name did not appear paid his half on the note. Although a question of notice affected the title the Court (at the request of the parties and with reference to possible future litigation in the matter) expressed its opinion that a trust had resulted in his favor, and said: “What difference can it make that eventual payment was secured by a promissory note, made, in part, at least, on (his) credit and at his request? None whatever. It cannot be doubted that he was bound to the surety he procured, to discharge it when due, and it is proved that he did so. He is, therefore, to be regarded as though he had been actually a party to the note, and the subsequent payment of at least a moiety of it is reflected back to the inception of the purchase.”

This seems to be an unnecessary reason,—to say that the payment of money is “reflected back;” for it is simpler to regard the giving of a note under such circumstances as a loan of the note to the person who does not sign it, but for whose benefit it is given. Then the payment being held to be a part of one whole transaction we get rid of a vague word, and have a clearer view of the act of creating and the occasion for enforcing the trust. This is

  1. 18 Pa. St. 123 (1851).