Bartol, J.,
delivered the opinion of this Court:
The appellant, on the 14th February 1859, recovered a judgment in the Superior Court of Baltimore city, against [259]*259jj¿e and Welby, for $"$,026.00 anti eosv. .*ut! on the 22nd 'dddhiiréiií thereon, which was lit'<d,' , ni’fcjj; property " Baltimore city, known as the "⅝⅛ ■ .A ⅛⅛."' Lawrence Sniyely, the intestate of the ;i.y)jMi]Jue, intervened as claimant of the property, and having subsequently died, his administrator appeared, and was made party claimant in his stead. The verdict and judgment were in favor of the claimant.
At the trial of the cause, four hills of exceptions were taken; th q first, third and fourth to the admission of certain evidence objected to by the appellant; and the second to the ruling of the Superior Court upon the prayers.
The plaintiff produced in evidence the record of the judgment on which the attachment was issued, the deed of trust from Lee and Welby (the defendants in‘the judgment) to Price and Ridgway, and also the contract between Price and Ridgway, the trustees, and Lawrence Snively, made on the 2nd March 1859, whereby it appeared that the trustees had, on the 21st January 1859, sold to Lawrence Snively the property in question, for $4,980, payable one-fifth cash, and four-fifths in instalments of $996, in six, twelve, eighteen and twenty-four months, with interest. The cash instalment was paid, and the notes of Lawrence Snively were accepted to secure the deferred payments.
Proof was then offered of the declarations of Lawrence Snively, to the effect that he was only nominally the purchaser, the purchase being in fact made for the use and benefit of Lee and Welby; that the payments which had been made of the purchase money, so far as it had been paid, were made by Lee and Welby, he, Lawrence Snively, claiming no interest in the property, and holding the contract only for the benefit of Lee and Welby, and as security for the unpaid balance of the purchase money.
First hill óf Exceptions. — The claimant then offered in evidence a written lease, made by Lawrence Snively, at Philadelphia, on the 1st day of August 1859, to Samuel Adams, demising the property to Adams for the term of [260]*260three years, at yearly rent of $2,000. This evidence being objected to by the plaintiffaSRffafej§sfefe7itF3&mission by the Court forms the subject of the first bill of exceptions.
The appellant, in support of this exception, has argued in this Court that the lease is res inter alios; and further, that to receive it in evidence, would be to admit the mere declarations of a party to be offered in his favor, and thus allow him to manufacture evidence for himself.
We do not assent to the force of these objections. One of the grounds on which the claim of Lawrence Snively to the property was assailed by the plaintiff, was that his purchase of it was a mere colorable and fraudulent pretence to cover up and conceal from the creditors of Lee and Welby their actual ownership; the lease was admissible to rebut the charge of fraud, and as evidence of an act of ownership exercised over the.property by L. Snively. A point-very much like this was settled in the case of Waters’ Lessee vs. Riggin, 19 Md. Rep., 536. The question of the fraud or bonafides of the lease was exclusively for the jury to decide upon all the proof; but, in our opinion, there was no error in allowing it to be given in evidence to the jury.
The third Exception. — For the same reasons we affirm the ruling of the Superior Court upon the third exception. The contract made with Adams, the lessee, testified to by Wheatley, was admissible evidence; leaving the question of fraud or bona fides to be decided by the jury.
Second bill of Exceptions. — Upon the state of facts disclosed in the first and second bills of exceptions, which we have already briefly stated, the question arises, whether the defendants, Lee and Welby, had an attachable interest in the property,, or, in other words, whether the evidence is sufficient in law to establish a trust in their favor? This question is raised by the prayers.
The whole difficulty, in this part of the case, grows out of the provisions of the statute of frauds, which require declarations and creations of trusts in lands to be manifested [261]*261and proved Ly writing. But trusts which, arise by implication or construction of law, aro, by the words of the statute, expressly excepted from its operation, and may be proved by parol. “Such a trust arises where one party purchases an estate and pays the money, but takes a deed in the name of another; there a trust results by construction of law to the man who paid the money. The payment of the money is the foundation of the trust.” Dorsey vs. Clarke, 4 H. & J., 556. 2 Story’s Eq. Jur., sec. 1201. “And if only a part of the purchase money is paid by a third party, there will be a resulting trust in his favor pro tanto.” This last proposition is laid down by Chancellor Johnson, in Purdy vs. Purdy, 3 Md. Ch. Dec., 547, and is supported by authority. In the same case the Chancellor says: “But then it seems to be indispensable to the creation of such a trust, that the money should be paid at the time,” and cites 4 Kent’s Com., 305, 306. It is well settled that such trusts cannot arise from parol declarations ex post facto. Cramer vs. Shriver, 18 Md. Pep., 146.
These are the general principles governing the question of constructive or resulting trusts; they may be more clearly understood by presenting some cases which, while they nearly resemble cases of constructive trusts, are yet not within the principles stated.
If a party who buys land agrees by parol to hold it for another, or to give that other the benefit of the purchase, upon the payment by him of the purchase money, such a conventional trust could not be enforced. It would be within the statute, and could be evidenced only by writing. Such was the case of Dorsey vs. Clarke, 4 H. & J., 556. “So if a man employ an agent, by parol, to buy an estate, who buys it accordingly, and no part of the consideration is paid by the principal, and there is no written agreement between the parties, he cannot compel the agent to convey the estate to him, as that would be in the teeth of the statute,” (by Judge Dorsey, in Dorsey vs. Clarke.) See Bartlett vs. Pickersgill, 4 East., 577, note. This principle was [262]*262decided in the case of Fowke, et al., vs. Slaughter, 3 A. K., Marshall, 971, cited by appellee.
The question here presented is, to which class the case before us belongs? ' Ey reference to ,the proof, it appears that at the time of the purchase, the property, though nominally sold to Lawrence Snively, was in fact purchased for Lee and Welby, and the purchase money, so far as it was paid at the time, was paid by them; and it further appears that the .instalments subsequently falling due, were also paid by them, Snively h'aving stated to the witnesses, as late as March 1860, or as late as the time of his death, (which occurred after the May Term of that year,) that all the payments to that time had been made by Lee and Welby.
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Bartol, J.,
delivered the opinion of this Court:
The appellant, on the 14th February 1859, recovered a judgment in the Superior Court of Baltimore city, against [259]*259jj¿e and Welby, for $"$,026.00 anti eosv. .*ut! on the 22nd 'dddhiiréiií thereon, which was lit'<d,' , ni’fcjj; property " Baltimore city, known as the "⅝⅛ ■ .A ⅛⅛."' Lawrence Sniyely, the intestate of the ;i.y)jMi]Jue, intervened as claimant of the property, and having subsequently died, his administrator appeared, and was made party claimant in his stead. The verdict and judgment were in favor of the claimant.
At the trial of the cause, four hills of exceptions were taken; th q first, third and fourth to the admission of certain evidence objected to by the appellant; and the second to the ruling of the Superior Court upon the prayers.
The plaintiff produced in evidence the record of the judgment on which the attachment was issued, the deed of trust from Lee and Welby (the defendants in‘the judgment) to Price and Ridgway, and also the contract between Price and Ridgway, the trustees, and Lawrence Snively, made on the 2nd March 1859, whereby it appeared that the trustees had, on the 21st January 1859, sold to Lawrence Snively the property in question, for $4,980, payable one-fifth cash, and four-fifths in instalments of $996, in six, twelve, eighteen and twenty-four months, with interest. The cash instalment was paid, and the notes of Lawrence Snively were accepted to secure the deferred payments.
Proof was then offered of the declarations of Lawrence Snively, to the effect that he was only nominally the purchaser, the purchase being in fact made for the use and benefit of Lee and Welby; that the payments which had been made of the purchase money, so far as it had been paid, were made by Lee and Welby, he, Lawrence Snively, claiming no interest in the property, and holding the contract only for the benefit of Lee and Welby, and as security for the unpaid balance of the purchase money.
First hill óf Exceptions. — The claimant then offered in evidence a written lease, made by Lawrence Snively, at Philadelphia, on the 1st day of August 1859, to Samuel Adams, demising the property to Adams for the term of [260]*260three years, at yearly rent of $2,000. This evidence being objected to by the plaintiffaSRffafej§sfefe7itF3&mission by the Court forms the subject of the first bill of exceptions.
The appellant, in support of this exception, has argued in this Court that the lease is res inter alios; and further, that to receive it in evidence, would be to admit the mere declarations of a party to be offered in his favor, and thus allow him to manufacture evidence for himself.
We do not assent to the force of these objections. One of the grounds on which the claim of Lawrence Snively to the property was assailed by the plaintiff, was that his purchase of it was a mere colorable and fraudulent pretence to cover up and conceal from the creditors of Lee and Welby their actual ownership; the lease was admissible to rebut the charge of fraud, and as evidence of an act of ownership exercised over the.property by L. Snively. A point-very much like this was settled in the case of Waters’ Lessee vs. Riggin, 19 Md. Rep., 536. The question of the fraud or bonafides of the lease was exclusively for the jury to decide upon all the proof; but, in our opinion, there was no error in allowing it to be given in evidence to the jury.
The third Exception. — For the same reasons we affirm the ruling of the Superior Court upon the third exception. The contract made with Adams, the lessee, testified to by Wheatley, was admissible evidence; leaving the question of fraud or bona fides to be decided by the jury.
Second bill of Exceptions. — Upon the state of facts disclosed in the first and second bills of exceptions, which we have already briefly stated, the question arises, whether the defendants, Lee and Welby, had an attachable interest in the property,, or, in other words, whether the evidence is sufficient in law to establish a trust in their favor? This question is raised by the prayers.
The whole difficulty, in this part of the case, grows out of the provisions of the statute of frauds, which require declarations and creations of trusts in lands to be manifested [261]*261and proved Ly writing. But trusts which, arise by implication or construction of law, aro, by the words of the statute, expressly excepted from its operation, and may be proved by parol. “Such a trust arises where one party purchases an estate and pays the money, but takes a deed in the name of another; there a trust results by construction of law to the man who paid the money. The payment of the money is the foundation of the trust.” Dorsey vs. Clarke, 4 H. & J., 556. 2 Story’s Eq. Jur., sec. 1201. “And if only a part of the purchase money is paid by a third party, there will be a resulting trust in his favor pro tanto.” This last proposition is laid down by Chancellor Johnson, in Purdy vs. Purdy, 3 Md. Ch. Dec., 547, and is supported by authority. In the same case the Chancellor says: “But then it seems to be indispensable to the creation of such a trust, that the money should be paid at the time,” and cites 4 Kent’s Com., 305, 306. It is well settled that such trusts cannot arise from parol declarations ex post facto. Cramer vs. Shriver, 18 Md. Pep., 146.
These are the general principles governing the question of constructive or resulting trusts; they may be more clearly understood by presenting some cases which, while they nearly resemble cases of constructive trusts, are yet not within the principles stated.
If a party who buys land agrees by parol to hold it for another, or to give that other the benefit of the purchase, upon the payment by him of the purchase money, such a conventional trust could not be enforced. It would be within the statute, and could be evidenced only by writing. Such was the case of Dorsey vs. Clarke, 4 H. & J., 556. “So if a man employ an agent, by parol, to buy an estate, who buys it accordingly, and no part of the consideration is paid by the principal, and there is no written agreement between the parties, he cannot compel the agent to convey the estate to him, as that would be in the teeth of the statute,” (by Judge Dorsey, in Dorsey vs. Clarke.) See Bartlett vs. Pickersgill, 4 East., 577, note. This principle was [262]*262decided in the case of Fowke, et al., vs. Slaughter, 3 A. K., Marshall, 971, cited by appellee.
The question here presented is, to which class the case before us belongs? ' Ey reference to ,the proof, it appears that at the time of the purchase, the property, though nominally sold to Lawrence Snively, was in fact purchased for Lee and Welby, and the purchase money, so far as it was paid at the time, was paid by them; and it further appears that the .instalments subsequently falling due, were also paid by them, Snively h'aving stated to the witnesses, as late as March 1860, or as late as the time of his death, (which occurred after the May Term of that year,) that all the payments to that time had been made by Lee and Welby. These facts, if found by the jury, established the trust in favor of Lee and Welby, and showed that they had an attachable interest in the property, to the extent of the payments by them; and therefore the prayers of the plaintiff ought to have been granted.
The propositions of law contained in the defendant’s prayers, when considered in themselves, are, in our opinion, correct. Undoubtedly, upon the facts therein stated, no constructive trust would arise; hut the error in granting them consisted in a misconstruction of the proof. The rights of Lee and Welby did not rest upon a parol promise by Lawrence Snively, or his mere purpose to give them the benefit of all the property would bring in the market, over and above the purchase money advanced by him,” as stated in the prayers. Their right arose from the payment by them of the purchase money, the evidence of which is uncontra-dicted, and was to the extent of such payment, notwithstanding the purchase was made in the name of Lawrence Snively. The hypothesis of the appellee’s prayers was contrary to the proof in the cause, and it was error, therefore, to grant them.
Fourth Exception. — The objection taken by the appellant to the evidence contained in the fourth hill of exceptions, is [263]*263based upon the failure to pro.duce the notes spoken of by the witness, Trull.
(Decided July 6th, 1865.)
This is not a valid objection. The fact to be proved by the witness, was that the notes given by L. Snively for the property, had been paid to the banking house of Johnson Bros., of which he was clerk. The notes described on the memorandum, were identified by the testimony of Th. Price, one of the trustees, and it was competent for the witness, without producing the originals, to state that they were sent to their correspondents, Drexel & Co., of Philadelphia, for collection, and that the amount thereof was received from Drexel & Co. by Johnson Bros., and when received. This is not giving parol evidence of the contents of written papers, but is evidence of a distinct substantive fact, clearly admissible by the rules 'of law. See the decision on the 2nd exception in Cramer vs. Shriver, 18 Md. Rep., 146, 147.
We affirm the ruling of the Superior Court upon the 1st, 3rd and 4 th exceptions, and reverse on the 2nd exception, and award procedendo.
Jndgmeni reversed and procedendo awarded.