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Page:Harvard Law Review Volume 2.djvu/49

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take the property, because it is no longer bought with the trust money purely and simply, but with a mixed fund. He is, however, still entitled to a charge on the property purchased for the amount of the trust money laid out in the purchase."

In Massachusetts it is held that where the consideration for the purchase of land is paid in part only by one person and the title isf taken in the name of another, no resulting trust will be created un- less '* the part of the purchase money paid by him in whose favor the resulting trust is sought to be enforced be shown to have been paid for some specific part or distinct interest in the estate, for ' some aliquot part ' as it is sometimes expressed ; that is, for a specific share, as a tenancy in common or joint tenancy of one- half, one-quarter, or other particular fraction of the whole ; or for a particular interest, as a life estate, or tenancy for years, or re- mainder in the whole ; and a general contribution of a sum of money towards the entire purchase is not sufficient*'* As this is the case where the transaction is rightful, it was supposed to follow that when the consideration was wrongfully paid in part with the cestui que trust's money he could not claim a specific portion of the land, for the misappropriated money must have been used as a general contribution only to the purchase money, and consequently he would not be entitled to a specific share under the rule above given. The point was so decided in Bresnihan v, Sheehan.^

The considerations, however, determining the rights of the cestui que trust when his money has been wrongfully used as part of the consideration, are different from those determining the rights of one who has paid part of the consideration, the conveyance being taken in the name of another. In the latter case there is a resulting trust, which depends on the presumed intention of the parties.* When A pays the purchase money and B takes the title, equity compels B to hold the title in trust for A, because it is presumed that was the intention ; and similarly when A pays only a part, the court will regard B as holding an aliquot part proportioned to the amount paid, in trust for A, if it is presumed that such was the intention. The Massachusetts court in effect decided that if A's intention was not expressed, that the money which he furnished should pay for an

1 M'Gowan v. M'Gowan, 14 Gray, 119. * 125 Mass. ii.

« I Perry on Trusts, §125. If the evidence shows no trust was intended, none will re- sult although the purchase money was not paid by the grantee. Livermore v, Aldrich, 5 Cush. 431 ; Bibb v. Smith, 12 Heisk. 728 ; Carter v. Montgomery, 2 Tenn. Ch. 216; Darrier v. Darner, 58 Mo. 222 ; Seibold v. Christman, 75 Mo. 308.