PARSONS, J.
The complainants in the bill are John Cromp-ton, (who died pending the suit,) Griffin M. Bender and Henry T. Crompton and his wife, and the bill having been dismissed by the Chancellor, the complainants are now plaintiffs in error. We will speak first of the lands in Wilcox, as to which the bill alleges that there was an agreement between the complainants and Dr. John E. Yasser, pursuant to which these lands were purchased by him, partly with his own and partly with John Crompton’s money, for the purposes mentioned in the bill, and sold by him to Maxwell, by consent of the complainants, in ful-filment of the objects of the purchase. This trust is alleged to have grown out of an agreement between or among all the parties. A distinct agreement is stated, and out of this, if true, the trust arose, and the rights of the several parties are to be ascertained by the agreement, and also the duties and obligations of the trustee. The bill clearly puts the claim of the complainants upon this foundation and no other. But is the bill sustained by the evidence 7 The allegation of the agreement between or among Dr. Vasser and all the complainants is neither admitted by the answer, nor proved. We know that some parts of the evidence tend to prove such an agreement, but in oar judgment, they are not sufficient to establish it. It is, for instance, by no means satisfactorily proved that Mr. Bender was a party to any actual contract or agreement of the kind. It may be said that there was some such an rgrcement between Dr. Vasser [265] and John Crompton, by which Bender was -secured as onevof the securities of Henry Ti. Crompton- But if, it were so,.the allegation of the bill, according to which Bender: was a contracting party, is not, proved to-be true.. The agreement, therefore, not being such as is alleged,- can be no ground for a; décree in favor of Bender, nor, indeed,., in favor of, any of the parties. For it is indisputable that an agreement alleged, upon -which relief is prayed,.must be admitted orproved,. substantially, as alleged.—Mason’s Adm’rs. v. Maury’s Adm’r., 8 Port. 211.
2. Bender, therefore,.not being entitled to relief upon any contract alleged in the bill and admitted by the defendant or proved, it becomes necessary to¡ inquire ’whether he can be relieved upon the fact of his relation,as co-surety. Putting the agreement,. whatever it may have been, out of the way, and the additional facts are, that Dr. Vasser purchased the lands in Wilcox at a sale made by the sheriff-under an execution in favor of another person against Henry T.". Crompton,,and that the purchase money was paid in part out..of his own and. in part out of John Crompton’s money,, according to some of the evidence. Upon those lands the sureties had no previous lien or claim, whatever. The right of Dr. Vasser and John Crompton thereto is the same as if they had belonged to,.and bean.soldas the property of a stranger to all the transactions; in which case it is evident, Bender could not claim to participate in the benefit of them as an indemnity against his liability as co-surety with Dr. Vasser and John Crompton for Henry T'. Crompton.. It would have been-.otherwise if Vasser and John Crompton-had. obtained an .indemnity from Henry T. Crompton, their principal in .the debts, by an arrangement with him.
3.. It is alleged in the hill that Dr. Vasser acted upon the trusts, but the allegation is in reference to the trusts that were created and defined by: the supposed agreement with all the complainants, by which,..consequently, his liabilities and duties are to be ascertained, but as the agreement was not proved, the Chancellor could not proceed-, upon it.. If he assumed, or was bound for any other -trust duties, it is not stated in the bill, unless so much of the bill as relates to the certificate marked A, and exhibited with the bill, ..is an exception to this, and of that we will speak in another part of this opinion..
4.. But if it were -conceded that the bill is so drawn as not to [266] be liable to the observations just made, tben the question is, can Bender recover upon the facts admitted or proved 1 He is a mere volunteer; he was a party to no agreement, and advanced no consideration. If a trust for his benefit had been declared, and that fact accordingly alleged in the bill, we would consider his case upon that ground ; but there is no allegation of the sort in the bill, for we will show in another place, that the paper marked A, which is stated in the bill, can avail nothing in this suit. A declaration of trust should be stated in the bill.—McFadden v. Tuskyus, 1 Phillips R. 153; 1 How. 458; 1 Keene 558, notes.
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PARSONS, J.
The complainants in the bill are John Cromp-ton, (who died pending the suit,) Griffin M. Bender and Henry T. Crompton and his wife, and the bill having been dismissed by the Chancellor, the complainants are now plaintiffs in error. We will speak first of the lands in Wilcox, as to which the bill alleges that there was an agreement between the complainants and Dr. John E. Yasser, pursuant to which these lands were purchased by him, partly with his own and partly with John Crompton’s money, for the purposes mentioned in the bill, and sold by him to Maxwell, by consent of the complainants, in ful-filment of the objects of the purchase. This trust is alleged to have grown out of an agreement between or among all the parties. A distinct agreement is stated, and out of this, if true, the trust arose, and the rights of the several parties are to be ascertained by the agreement, and also the duties and obligations of the trustee. The bill clearly puts the claim of the complainants upon this foundation and no other. But is the bill sustained by the evidence 7 The allegation of the agreement between or among Dr. Vasser and all the complainants is neither admitted by the answer, nor proved. We know that some parts of the evidence tend to prove such an agreement, but in oar judgment, they are not sufficient to establish it. It is, for instance, by no means satisfactorily proved that Mr. Bender was a party to any actual contract or agreement of the kind. It may be said that there was some such an rgrcement between Dr. Vasser [265] and John Crompton, by which Bender was -secured as onevof the securities of Henry Ti. Crompton- But if, it were so,.the allegation of the bill, according to which Bender: was a contracting party, is not, proved to-be true.. The agreement, therefore, not being such as is alleged,- can be no ground for a; décree in favor of Bender, nor, indeed,., in favor of, any of the parties. For it is indisputable that an agreement alleged, upon -which relief is prayed,.must be admitted orproved,. substantially, as alleged.—Mason’s Adm’rs. v. Maury’s Adm’r., 8 Port. 211.
2. Bender, therefore,.not being entitled to relief upon any contract alleged in the bill and admitted by the defendant or proved, it becomes necessary to¡ inquire ’whether he can be relieved upon the fact of his relation,as co-surety. Putting the agreement,. whatever it may have been, out of the way, and the additional facts are, that Dr. Vasser purchased the lands in Wilcox at a sale made by the sheriff-under an execution in favor of another person against Henry T.". Crompton,,and that the purchase money was paid in part out..of his own and. in part out of John Crompton’s money,, according to some of the evidence. Upon those lands the sureties had no previous lien or claim, whatever. The right of Dr. Vasser and John Crompton thereto is the same as if they had belonged to,.and bean.soldas the property of a stranger to all the transactions; in which case it is evident, Bender could not claim to participate in the benefit of them as an indemnity against his liability as co-surety with Dr. Vasser and John Crompton for Henry T'. Crompton.. It would have been-.otherwise if Vasser and John Crompton-had. obtained an .indemnity from Henry T. Crompton, their principal in .the debts, by an arrangement with him.
3.. It is alleged in the hill that Dr. Vasser acted upon the trusts, but the allegation is in reference to the trusts that were created and defined by: the supposed agreement with all the complainants, by which,..consequently, his liabilities and duties are to be ascertained, but as the agreement was not proved, the Chancellor could not proceed-, upon it.. If he assumed, or was bound for any other -trust duties, it is not stated in the bill, unless so much of the bill as relates to the certificate marked A, and exhibited with the bill, ..is an exception to this, and of that we will speak in another part of this opinion..
4.. But if it were -conceded that the bill is so drawn as not to [266] be liable to the observations just made, tben the question is, can Bender recover upon the facts admitted or proved 1 He is a mere volunteer; he was a party to no agreement, and advanced no consideration. If a trust for his benefit had been declared, and that fact accordingly alleged in the bill, we would consider his case upon that ground ; but there is no allegation of the sort in the bill, for we will show in another place, that the paper marked A, which is stated in the bill, can avail nothing in this suit. A declaration of trust should be stated in the bill.—McFadden v. Tuskyus, 1 Phillips R. 153; 1 How. 458; 1 Keene 558, notes.
5. If Bender can recovor at all, therefore, it is upon the ground that the trust for his benefit was actually and completely created. Courts of equity will not enforce a mere voluntary trust which is executory. Judge Story adds, “ and, upon the same ground, if two persons, for a valuable consideration as between themselves, covenant to do some act for the benefit of a third person, who is a mere stranger to the consideration, he cannot enforce the covenant against the two, although each one might enforce it against the other. But it is otherwise when the use or trust is already created and vested, or otherwise fixed in the cestui que trust; or, when it is raised by a last will and testament.” — 2 Story’s Eq. § 973. The only agreement which is stated in the bill is not proved. If Bender can recover at all, it is upon the supposition that there was a use or trust, not ex-ecutory, but actually created and vested, or fixed in him as cestui que trust. The cases of Coleman v. Sorel, 3 Bro. C. C. 12; S. C. 1 Ves. jun. 50; Ellison v. Ellison, 6 Ves. 656, and Pulvertoft v. Pulvertoft, 18 Ves. 84, and 1 Keene 558, notes, show that when a trust is actually created in favor of a volunteer, a court of equity will enforce its execution. And it seems that a party may so constitute himself a trustee that a court of equity will execute the trust in favor of a volunteer.—Ex parte Pye and exparte Dubost, 18 Ves. 149. Then, if Dr. Vasser did constitute himself a trustee for Bonder, so that the trust was completely created, and intended for the benefit of Bender, or of Bender and others, and the relation of trustee and cestui que trust fully established, it may be enforced in equity for Bender’s benefit, although he is a volunteer. But all this must have been, done, and it must appear by evidence that is in all respects sat[267] •isfactory. We are not convinced that there was a certain trust actually created, with intention to make Bender individually, or with others, a cestui que trust, with vested rights as such. This may have been so; there is evidence tending to such a conclusion, but we cannot affirm that it is satisfactorily proved. Dr. Yasser doubtless expected the debts to be paid out of certain resources, and desired and intended, in that event, that Bender should be relieved of his liabilities. But we think Bender’s relief was not, or, at any rate, is not clearly proved to have been, a motive or object of the transactions, though it might, perhaps, be a consect&ence'of them. In this view, the exhibit A does not create a trust for Bender, or make him a cestui que trust with certain or fixed rights-. But the last answer of the defendant expressly denies "that -the lands mentioned in that exhibit were the same thakare mentioned in the bill as having been purchased with the joint funds; and to our apprehension it does not clearly appear that they were the same; but if they were, there are reasons why that circumstance would not change our opinion-of the rights of any of the parties.
6. As to the lands i'n Monroe, we do not discover by the bill, what interest or rights, if any, in respect of them, is claimed by Bender. But if it Was the object to assert any rights in his behalf in that respect, an answer is to be found, in what has been already said. We have spoken more particularly of the case in relation to Bender, because it appears that he paid part of the debt to the Branch Bank at Mobile, and it does not appear, as we understand the case, that it was all paid back to him. The residuo, however, is far less than his proportion of the debts as one of the sureties. Yet if there was ever an effectual trust created in his favor, it is still a subsisting one as to the extent of the residuo. His claim in this last view is already answered.
7. The Chancellor dismissed the hill on the whole evidence and pleadings, upon the merits of the case, considering the evidence uncertain and insufficient, and because it tended to show that there was no subsisting trust. We cannot say that he was in error. We do not understand the counsel of the plaintiffs in error to contend that, in this sliit, there should have been a trust declared or a decree of specific performance upon the exhibit A, in favor of H. T. Crompton Or his wife.
The decree is affirmed