Seaman et ux. v. Cook. erty of the trustee or agent, to be treated as a breach of trust, the cestui que trust can either follow it and claim that in which it has been invested, or hold the trustee personally responsible. Oliver et al. v. Pratt, 3 How. U. S. R. 401; 2 Story, Eq. § 1210; 4 Kent, Com. 305, 306. And this would also be the effect of a resulting trust where only part of the consideration was the money of another; a trust would result in proportion. 4 Kent, Com. 306; Powell and Wife v. Monson and Brimfield Man. Co., 3 Mason, Cir. C. R. 364; Wray v. Steel, 2 Ves. & Beam. R. 389; Brothers v. Porter et al., 6 B. Mon. R. 106; Ross v. Hegeman, 2 Edw. Ch. R. 373. The whole record very strongly shows, that Susannah had no individual undivided property, unless the West and Water street lots became so by operation of the statute of New York, on her taking the titles in her own name with the knowledge of the other owners. See Rev. Stat., N. Y., 1836, p. 728, §§ 50 to 53. This question will be examined; but let this be admitted, and still a defence is not made out; for the answer admits the payments to have been made out of these joint funds, without showing the proportions. We shall, therefore, regard them as truly set forth, not being denied. Nor could the trustee or agent derive any advantage from the confusion arising from her own fault in mixing her private with the trust moneys; and it becomes her duty to show how much belongs to her separately. 6 B. Mon. R. 106; 2 Johns. Ch. R. 405–410; 2 Edw. R. 373; 3 Mason, R. 360; 1 Story's Eq. Juris. § 468. It is further contended, that there can be no resulting trust to the vendor in an absolute conveyance. This may be true, as a general rule; but, I think, can have no application to this case. This is a purchase by the agent or trustee actually in the management of the whole fund; and is not, therefore, to be confounded with purchases made by persons not sustaining such relation. So the principle laid down in Hovey et al. v. Holcomb et al., 11 III. R. 660, in relation to absolute deeds, does not extend to a case like this, to prevent the grantor taking a resulting trust in property purchased from him by his own agent of another fund and estate, and paid for in part with his own money. Such a rule might prevent a partner from selling to his firm, or to a company of which he might be a member, without the hazard of subjecting himself to the loss of such portion of the purchase-money belonging to him, as might be applied in the payment. The only remaining question is in relation to the title to the lots in West and Water streets, under the New York statute, Seaman et ux. v. Cook. and which will determine the ownership of that portion of the consideration money derived from the rents of those lots. By the marriage, Seaman became entitled to his wife's property in possession, the rents of the land, and has a right to reduce into his possession her choses in action. But if, as is contended, by the investment of his moneys in the West and Water street lots, by Mrs. Drake, and taking the conveyances in her own name, with his knowledge, divests him of all right to the lots, by the statute of New York; then the rents would belong to her also, and would increase her interests in the Chicago lands in proportion. And in determining this question we must look to the statute of New York, and the decisions of her courts for its true interpretation. The lex loci rei sita will govern in relation to the titles and ownership of lands. United States v. Jonah Crosby, 2 Pet. Cond. R. 437, and note; McConnell et al. v. Sullivant et al., 6 Cond. R. 70; Story Confl. Laws, §§ 363 to 365, 448, 454, 463. By the statute of New York, (Rev. Stat. 1836, p. 728,) it is provided in section 50 that "The preceding sections of this article, shall not extend to trusts arising or resulting by implication of law, nor be construed to prevent or affect the creation of such express trusts as are hereinafter authorized and defined. Section 51. "Where a grant for a valuable consideration shall be made to one person, and the consideration therefor, shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provision of the next section. Section 52. "Every such conveyance shall be presumed fraudulent, as against the creditors at the time, of the person paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands. Section 53. "The provisions of the preceding fifty-first section shall not extend to cases where the alienee named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration; or where such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belong to another person." The policy of this act, in Wait v. Day, 4 Denio, R. 442, is declared by the court, to be "to discourage the purchase of lands in the name of another, by cutting off any resulting use or trust, so far as the person paying the consideration is himself concerned." And as to creditors at the time of such conveyance, Seaman et ux. v. Cook. only, does any use or trust result under the fifty-second section, and that to the person paying the consideration, but in favor of the creditor. The phraseology of the fifty-first and fifty-second sections seems to contemplate, on the part of the owner of the consideration money, an active participation in the transaction, by paying the money. The first paragraph of the 53d section is in harmony with this view. The person paying the purchase-money would have a right to the conveyance; and to sustain it as good against him, when made to another, his assent, or direction, expressly given, or to be implied from his knowledge of such a conveyance, and silence, must be satisfactorily shown. Otherwise, it might constitute a fraud upon his rights, and raise a resulting use or trust to him. The phraseology of the last paragraph of the 53d section is different; and provides for a different state of facts and circumstances. Where the alienee shall purchase lands with the money of another, "in violation of some trust," which may be as well in a perversion of the wrong kind of investment, as in the right subject-matter of investment, but in taking title in such manner as might endanger or destroy the rights of the cestui que trust, I apprehend the term "use or trust" is not used in the strictly technical sense in which the relation of trustee and cestui que trust are created, but in the most general and comprehensive sense of that term, and which would include all quasi trustees, and fiduciary relations, arising from the possession of property, and the control and management of interests belonging to others, by agents and such like, embracing the duty of safe keeping merely, as well as cases where the confidence required a particular management or application of the trust fund. If this be a sound interpretation of that paragraph, this case is brought within the provision of that section, which provides two exceptions to the general rule laid down in the 51st section: "Uses and trusts are not wholly abolished; they are only modified" by this statute. Wait v. Day, 4 Denio, 442; and see section 45 of that act. Mrs. Drake had managed this estate for thirty-seven years; buying, selling, leasing, vesting, and reinvesting, collecting rents, &c., and as she thought proper, taking titles in the names of all those interested. And during all this time, they constituted but one family, of which she was the head and as such supplied the common wants of all. The deed of partition neither changed the character of the tenancy, the title, or the respective Seaman et ux. v. Cook. interests of the parties to it. After Seaman became a member of the family, by marriage with one of the parties, and a party in interest, every thing continued as before, except the titles of the subsequent investments in the sole name of Mrs. Drake. This appears to us to have been in violation of the trust and confidence reposed in her as the acting agent for the owners. She commenced as administratrix in 1800 in a fiduciary character as quasi trustee, and the record is silent as to a settlement of the trust, and a divestiture of the character, unless we should infer it from the making of the deed. But admitting that the duties of administratrix had long since been fulfilled, still the confidence and trust relation arose from it, and had continued while she continued the same possession, management, and control, without alteration of the parties in interest. As the consideration paid for the Water and West street lots was derived from the common fund, we are of opinion that there was a resulting trust of those lots to the common proprietors of the fund. And, therefore, the rents issuing from those lots were in like manner the common property of all, and that the consideration of the Chicago land, in question, belonged in equal undivided third parts to each. The decree of the circuit court is affirmed. Decree affirmed. INDEX. ABATEMENT. An attachment was issued against two, upon an affidavit alleging that one was a Held, that this was correct, and that the party pleading in abatement, had no ACTION. 1. If a party brings a penal action without filing a bond for costs, it may be dis- 2. Where an attorney commences a suit in the name of another, without author- 3. If a deed be inter partes, that is, on the face of it, expressly describe and 4. An order, given by the lessor of premises to his lessee, directing him to pay 5. The recording of a deed affords primâ facie evidence of its delivery. A See ASSIGNMENT; BOND, 2. |