Page:Harvard Law Review Volume 1.djvu/193



INCE the text-books are not very full upon what are known as “subsequent payments” under resulting trusts, and since the Courts sometimes speak ambiguously about them, it is of use to notice certain cases whose value is increased by the fact that there are comparatively few of the kind. Subsequent payments usually fall under that class of resulting trusts in which the consideration is paid by one, and the land is granted to another. The peculiar rule is that the trust must result at the time of the grant; that it is implied by law from the acts of the parties; that the intention of the parties to create a trust is not defeated by their oral expression of it; and that payments and agreements before or after the grant cannot of themselves raise a resulting trust. When, for instance, payments subsequent to a grant are held to show such a trust they are merely parts of a transaction which as a whole is held to prove that at the time of the grant a trust was raised.

This distinction between proving the trust, and creating it, is often overlooked, and is important in the cases where notes are given for the land by one party for the benefit of another, and the payments in money are made subsequently by that other. The fact that a note is paid by one who is not a party to it tends to convince the Court that the nature of the transaction, at the time of the grant when the note was given, was as follows: First, the note was in fact lent by the maker to the person who now pays it, although it was not delivered to him; second, the note, being so lent to him, was, therefore, held in trust for him by the maker before it was delivered to the grantor for the land; third, the note so held in trust was delivered to the grantor for the land, which being so purchased was affected by the same trust that affected the note; fourth, thus the trust in the land was then raised in behalf of the person who now pays the note, whether the parties orally expressed or can be supposed to have thought of this legal analysis or not, and even if they used words inconsistent with this explanation of their conduct. But the Courts sometimes speak as if these payments raised the trust, when, strictly speaking, they are the conditions upon the performance of which the transaction as