Open main menu

Page:Harvard Law Review Volume 1.djvu/198

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

the express doctrine of Dudley v. Bachelder, and the meaning of Lounsbury v. Purdy, and Barrows v. Bohan, and Cramer v. Hoose. But even in Dudley v. Bachelder the Court used the following words: “The payment which raises a resulting trust must be part of the transaction, and relate to the time when the purchase was made” (p. 407). (The italics are mine.) Since the transaction is held to be one, the word “raises,” as applied to the effect of the payment, does not imply that the trust was not raised by the loan of the notes, but rather has in view the enforcing of the trust, as I have above suggested concerning White v. Sheldon. The word “relate,” in Dudley v. Bachelder, simply indicates the unity of the transaction, which in fact consisted of both the loan and the payment of the loan. The trust cannot be said not to have existed between the loan and the payment of the loan, for, although the transaction is held to be one, time in fact intervened, and within such time the land was, as in Runnels v. Jackson, subject to the equity which was completed, for the purpose of being enforced, by the act of payment.

Practically also it is important to insist upon the distinction between the creation of the trust by the loan of a note, and the evidence or want of evidence of the trust, consisting in the payment of the note; for when the note has not been paid, the maker of it, if fraudulently inclined, sometimes takes advantage of that to deny that any trust exists. This he may do, either for his own benefit as against the person for whose benefit he originally agreed to act, or to protect that person against creditors by denying their debtor’s interest in the property in question. Sometimes a shrewd speculator, who induces a tool of no pecuniary responsibility to sign notes for him, and to take the title of land for him, by promising to take care of the whole matter, so covers his tracks that the poverty of the pretended owner, which makes it impossible for him to be the real purchaser, is the chief evidence of the trust,[1] and the construction that the notes were themselves a loan to the person for whose benefit they were, in fact, given, is the chief point by which the raising of the trust can be established. Hence appears the practical importance of the cases cited.

Charles E. Grinnell.

Boston, September, 1884.


  1. Willis v. Willis, 2 Atk. 71 (1740), a leading case.