The opinion of the Court was delivered by
Moses, C. J.
The case presents some peculiar features. One not the least remarkable is, that while the respondent claims an undivided half interest in the separate tracts of land alleged in the lifetime of his brother, Minor Clinton, to have been held between them as tenants in common, no proof by a deed or other instrument was produced to show from whom the legal title was derived or in whom it actually vested. The lands were bought at different times from different persons; — not a de.ed is produced, and it is conceded that there is none on record. It is not only a singular instance of neglect on the part of the deceased, Minor Clinton, but a more extraordinary one on the part of Irvin, who from 1831, when the first purchase of the land in question was made, to June, 1867, when he filed his answer, by no act or declaration, in the absence of all paper title, did he prefer a claim to any portion of it devised by the will of the said Minor, of which he was appointed executor, and under which one-half of the whole estate was conveyed to him in fee; and this notwithstanding that an order for the sale of all the lands was made by a bill filed by the qualified executor, to which he was a party, and the order actually executed.
[102]*102While the legal title of Minor Clinton to one-half of the two parcels of land is not disputed, Irvin claims that one-half of the consideration money paid by Minor was derived from a fund in which he held some interest not definitely stated, and rests his claim on no other right. He can then only sustain it as a trust of the legal estate in an undivided interest in the land resulting to him from the application of his money by the said Minor Clinton to the purchase. A trust so arising may be' established by parol, for it is not within the Statute of Frauds, being expressly excepted from its operation.
Although parol proof is admitted to establish a trust thus resulting, nevertheless, to divest one of a legal title and confer it on another, it will not avail, unless it is dearly sufficient for the proposed end. Testimony which, while it may induce doubt, does not satisfy the mind of the actual existence of the facts necessary to establish such a trust will not be enough. The payment of the purchase money, on which the claim depends, must not be made out by conjecture, but by circumstances which show the fact. If they are loose and equivocal, they will not suffice. — See Lewin on Trusts and Trustees, 206; Hill On Trustees, 94; 3 Sugd. on Y. and P., 174.
While the fact of payment must be established, it must “be of some definite part of the whole consideration, as one-half, one-third or the like.” — Sayre vs. Townsend, 15 Wend., 651; White vs. Carpenter, 2 Paige, 238, 241. In the case before us, so far from any proof of a definite portion of the consideration paid by Minor having been of the money of Irvin, it is a claim through an unsettled copartnership, which for a time existed between them, no account having been taken, and their relation to the fund not yet ascertained. It assumes that Minor was indebted to Irvin for one-half of the earnings of a law copartnership for about fifteen years, yielding from $800 to $1,000 per annum, of which, in the language of the respondent, in his evidence, “Minor received all the moneys due.” It is, therefore, clear.that if he was entitled to an interest in any portion of the lands, even if bought with the proceeds of the partnership, the extent must depend on the portion of his money thus derived and appropriated, and this to be ascertained on an account between them which was never taken. Now, it is true that in the absence of proof of the interest which a partner is to have in the earnings of the firm, he will be entitled to an equal [103]*103share of the profits. Here, assuming an indebtedness by Minor to Irvin, the amount of it is not established. How, then, even supposing that the purchase was made with copartnership funds, is the interest of Irvin in the lands so purchased ascertained to be one-half? The Bear Creek plantation, for instance, was bought in 1831, when they had only been in copartnership for one year; how much of Irvin’s interest in its earnings was applied by his brother to the purchase?
A brief review of the facts of the case, looking to the time when this claim was first presented, cannot fail to make impressions not" at all consistent with its support. Minor Cliuton died in 1865, leaving a will executed in November, 1864, by which he disposed of all his property, including sixty-three slaves, in equal proportions, between his brother Irvin and R. G. Billings. They were nominated his executors, but the latter alone qualified. In 1867, Billings filed a bill alleging the insolvency of the testator, — seek-, ing to enjoin creditors, and praying a sale of the realty in aid of the payment of debts. At June Term of the same year a Referee was appointed, creditors enjoined and called in, and shortly after-wards, under an order therefor, a sale of the real estate was made on 7th October, 1867. Irvin Clinton had been made a party to the bill before the order of sale. A report of sales was submitted to the Court at June Term, 1868, and confirmed. On 31st December, 1867, he filed his answer, in which he claimed that the Flat Creek plantation (which was bought in 1850) was purchased by his deceased brother and himself from the Belks, with the proceeds of their law copartnership; but as to the Bear Creek place, he did not know whether the testator paid for itj out of means derived from the same source or how it was held. On 28th September, 1868, he amended his answer, alleging that from extrinsic evidence which he had obtained he believed he had an equal interest with his brother in the said tract, derived through the “funds belonging to the law copartnership.” No testimony of any kind was produced before the Referee, (save a contract with a superintendent for the Bear Creek place, year not given,) but the declarations of the deceased at various times and to various persons, from 1841 to 1865 inclusive, not only as to the joint interest of Irvin in the Bear Creek and Flat Creek plantations, but in all the lauds he owned, together with his negroes, and, in fact, “all the property he had,” as was said by one or more of the witnesses. And yet Minor to [104]*104his death was in the use and possession of all the property, — notoriously dealing with and treating it exclusively as his own, even through the solemn act of a last will aud testament.
There was no testimony as to the circumstances of Irvin, — why he so long rested without asserting his right to a settlement of the corpartnership, which expired as long ago as 1845 or 1846, Minor in the possession of property sufficiently large to respond, — and in fact there was no claim ever made until his whole estate was disposed of by a judicial sale in a cause to which the respondent was a party, and that sale confirmed without objection. Standing by and allowing these two parcels of land, in which he claims so large an interest, to be sold without a word of interposition, and then contesting the proceeds with the creditors, who had trusted the deceased, most likely, on the faith of the very property.
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The opinion of the Court was delivered by
Moses, C. J.
The case presents some peculiar features. One not the least remarkable is, that while the respondent claims an undivided half interest in the separate tracts of land alleged in the lifetime of his brother, Minor Clinton, to have been held between them as tenants in common, no proof by a deed or other instrument was produced to show from whom the legal title was derived or in whom it actually vested. The lands were bought at different times from different persons; — not a de.ed is produced, and it is conceded that there is none on record. It is not only a singular instance of neglect on the part of the deceased, Minor Clinton, but a more extraordinary one on the part of Irvin, who from 1831, when the first purchase of the land in question was made, to June, 1867, when he filed his answer, by no act or declaration, in the absence of all paper title, did he prefer a claim to any portion of it devised by the will of the said Minor, of which he was appointed executor, and under which one-half of the whole estate was conveyed to him in fee; and this notwithstanding that an order for the sale of all the lands was made by a bill filed by the qualified executor, to which he was a party, and the order actually executed.
[102]*102While the legal title of Minor Clinton to one-half of the two parcels of land is not disputed, Irvin claims that one-half of the consideration money paid by Minor was derived from a fund in which he held some interest not definitely stated, and rests his claim on no other right. He can then only sustain it as a trust of the legal estate in an undivided interest in the land resulting to him from the application of his money by the said Minor Clinton to the purchase. A trust so arising may be' established by parol, for it is not within the Statute of Frauds, being expressly excepted from its operation.
Although parol proof is admitted to establish a trust thus resulting, nevertheless, to divest one of a legal title and confer it on another, it will not avail, unless it is dearly sufficient for the proposed end. Testimony which, while it may induce doubt, does not satisfy the mind of the actual existence of the facts necessary to establish such a trust will not be enough. The payment of the purchase money, on which the claim depends, must not be made out by conjecture, but by circumstances which show the fact. If they are loose and equivocal, they will not suffice. — See Lewin on Trusts and Trustees, 206; Hill On Trustees, 94; 3 Sugd. on Y. and P., 174.
While the fact of payment must be established, it must “be of some definite part of the whole consideration, as one-half, one-third or the like.” — Sayre vs. Townsend, 15 Wend., 651; White vs. Carpenter, 2 Paige, 238, 241. In the case before us, so far from any proof of a definite portion of the consideration paid by Minor having been of the money of Irvin, it is a claim through an unsettled copartnership, which for a time existed between them, no account having been taken, and their relation to the fund not yet ascertained. It assumes that Minor was indebted to Irvin for one-half of the earnings of a law copartnership for about fifteen years, yielding from $800 to $1,000 per annum, of which, in the language of the respondent, in his evidence, “Minor received all the moneys due.” It is, therefore, clear.that if he was entitled to an interest in any portion of the lands, even if bought with the proceeds of the partnership, the extent must depend on the portion of his money thus derived and appropriated, and this to be ascertained on an account between them which was never taken. Now, it is true that in the absence of proof of the interest which a partner is to have in the earnings of the firm, he will be entitled to an equal [103]*103share of the profits. Here, assuming an indebtedness by Minor to Irvin, the amount of it is not established. How, then, even supposing that the purchase was made with copartnership funds, is the interest of Irvin in the lands so purchased ascertained to be one-half? The Bear Creek plantation, for instance, was bought in 1831, when they had only been in copartnership for one year; how much of Irvin’s interest in its earnings was applied by his brother to the purchase?
A brief review of the facts of the case, looking to the time when this claim was first presented, cannot fail to make impressions not" at all consistent with its support. Minor Cliuton died in 1865, leaving a will executed in November, 1864, by which he disposed of all his property, including sixty-three slaves, in equal proportions, between his brother Irvin and R. G. Billings. They were nominated his executors, but the latter alone qualified. In 1867, Billings filed a bill alleging the insolvency of the testator, — seek-, ing to enjoin creditors, and praying a sale of the realty in aid of the payment of debts. At June Term of the same year a Referee was appointed, creditors enjoined and called in, and shortly after-wards, under an order therefor, a sale of the real estate was made on 7th October, 1867. Irvin Clinton had been made a party to the bill before the order of sale. A report of sales was submitted to the Court at June Term, 1868, and confirmed. On 31st December, 1867, he filed his answer, in which he claimed that the Flat Creek plantation (which was bought in 1850) was purchased by his deceased brother and himself from the Belks, with the proceeds of their law copartnership; but as to the Bear Creek place, he did not know whether the testator paid for itj out of means derived from the same source or how it was held. On 28th September, 1868, he amended his answer, alleging that from extrinsic evidence which he had obtained he believed he had an equal interest with his brother in the said tract, derived through the “funds belonging to the law copartnership.” No testimony of any kind was produced before the Referee, (save a contract with a superintendent for the Bear Creek place, year not given,) but the declarations of the deceased at various times and to various persons, from 1841 to 1865 inclusive, not only as to the joint interest of Irvin in the Bear Creek and Flat Creek plantations, but in all the lauds he owned, together with his negroes, and, in fact, “all the property he had,” as was said by one or more of the witnesses. And yet Minor to [104]*104his death was in the use and possession of all the property, — notoriously dealing with and treating it exclusively as his own, even through the solemn act of a last will aud testament.
There was no testimony as to the circumstances of Irvin, — why he so long rested without asserting his right to a settlement of the corpartnership, which expired as long ago as 1845 or 1846, Minor in the possession of property sufficiently large to respond, — and in fact there was no claim ever made until his whole estate was disposed of by a judicial sale in a cause to which the respondent was a party, and that sale confirmed without objection. Standing by and allowing these two parcels of land, in which he claims so large an interest, to be sold without a word of interposition, and then contesting the proceeds with the creditors, who had trusted the deceased, most likely, on the faith of the very property.
He says, in his examination, “that he had nothing-to do with the negotiations for the purchase of the Bear Creek and Belk lands;” but in his answer he states “that the purchase of the Belk tract was made jointly by Minor and himself with common funds arising from the proceeds of the copartnership in the practice of law that existed between them for a number of years;” and, further, “that they soon after took possession of the said tract of land with a full knowledge and understanding that it was their joint property, and to be used and enjoyed between them,” and yet no claim in the lifetime of Minor was ever asserted, although he alone retained the possession and use, and none was made after his death until the lands were sold, and then an interest in the proceeds of the sale was set up by reason of his alleged interest in the money with which they were bought.
The contract with the superintendent of the Bear Creek place made by the two brothers, while it may be a circumstance to show1 that they planted together, cannot be regarded as an admission by Minor of any interest in the land on the part of Irvin. ■ Their joint planting ceased in 1845 or 1846, and the place was exclusively used by Minor to the time of his death without any claim of rent by Irvin.
' The alleged declarations of Minor, in the manner they were made, in the face of the facts of the case, do not amount to an avowal or admission of a trust in any portion of his property in favor of his brother. If they amounted to that kind of acknowledgment which could bind him as a trustee, it would cover and include the whole [105]*105of the property which he had in possession at his death; for, looking to the testimony of all the witnesses, the alleged declarations would leave nothing in the possession of Minor at his death to be claimed through his individual right.
We do not regard the conclusion of the Referee on the facts as legitimately resulting from the testimony. On the contrary, in our judgment, the evidence leads to a different result. It may not be out of place to refer to the fact that although the Referee finds that the real estate was purchased by the copartnership funds and the said Irvin entitled therein to a one-half interest, he commends a reference to ascertain what amount is now due on such account, although Irvin in his answer preferred no such claim.
It might strike a practical mind as not unworthy of inquiry, if the earnings of the law practice of the firm amounted only to $800 or $1,000 per annum, after the support of both the partners, how much, on the most economical calculation, could have been left for the purchase of the lands in question ?
Conceding to the witnesses who testify to the declarations of Minor the fullest credibility, testimony of that character is not favored by the Courts. Mr. Sugden, in his work on Vendors and Purchasers, p. 178, says: “When the evidence is merely parol, it will be received with great caution. Evidence of naked declarations made by the purchaser himself is, as Sir William Grant observed, in all cases most unsatisfactory evidence, on account of the facility with which it may be fabricated and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.”
But if Irvin had the interest in the lands for which he now contends, he has lost it by his laches. Plven where the Statutes of Limitation can be interposed, “ it is the knowledge of the fact relied on which prevents the bar, not the discovery of evidence to establish it.” — Parham vs. McCrary, 6 Rich. Eq., 140. It was at one time doubted whether a resulting trust was exempted from the operation of the statutes. It is not necessary here to consider the effect of time on such a trust through the statutes. The analogy of the statutes have, however, been applied to such trusts by the Courts, “ and relief has been refused where the party with full knowledge, or being in a situation to have full knowledge, of his rights has delayed for twenty years to prosecute his claim. On more than one occasion “ a delay of eighteen years in enforcing a claim founded [106]*106on a constructive trust has been held a sufficient reason for dismissing the bill.” — Hill on Trustees, 265.
Mr. Lewin, in his work on Trusts and Trustees, p. 207, says: “The real purchaser may be also barred of his interest by laches, for the presumption of a resulting trust will not be raised after a great length of time in opposition to the evidence from actual enjoyment.”
We think the principle so announced must prevail here.
The order of the Circuit Court of July 10, 1874, as far as it sustains the said claim, must be set aside, and it is so ordered.
Wright, A. J., and Willard, A. J., concurred.