Chambers, J.,
delivered the opinion of this court.
The propositions of law, on which the appellee relies to sustain the decree in this case, may all be conceded, to wit: that a fraudulent deed can convey no title to the grantee; that relief will be given where oppression or imposition have been practiced, and that gross inadequacy of the price paid, is one of the evidences of such oppression or imposition; that where one person advances the purchase money for land, and a deed is taken in the name of another, a resulting trust is created by operation of law, in favor of the party advancing the purchase money, and that parol testimony may be resorted to, for the purpose of proving these facts, which, when established, take the case out of the statute of frauds. The material inquiry, then, is, has the testimony established such a state of case as these principles of law embrace?
Upon the bill and answer, alone, there can be no ground on which the complainant below, the appellee here, can claim relief. The agreement by Hays (the defendant below,) to purchase the property, as the friend of the complainant, and for her use, as alleged in the bill, is most positively denied. The bill avers, that complainant induced Hendon to sell his interest t,o Hays, for her advantage and use. The answer asserts, that [364]*364Hendon was about to sell to a stranger, when he was urged by complainant to interpose, not to purchase for her, but for himself; and in regard to the allegation, that Hays volunteered his agency in originating and arranging the conveyance from Hen-don, the answer asserts, and the proof is- clear, that Hays reluctantly engaged in the transaction.
The material charges in the original and supplemental bills, without stopping to notice apparent inconsistencies, are, that the conveyances to Hays were made “upon the express understanding and agreement, previously entered into between them, that Hays would hold the lands, and all the title and interest conveyed, in trust for her sole and separate use, an’d would pay to her the rents and profits as they accrued, and would after-wards execute a proper instrument declaratory of the trust, or would re-convey it to her in such manner as to secure it to her and her heirs, exclusive of her husband.”' That this-Was done in consequence of the suggestion by Hays, that it was necessary to avoid the waste of her property by her husband; that “'it was perfectly understood between them, he was to hold the property as trustee, and subject to her exclusive direction and control.”
The supplemental bill alleges, that the complainant supposing that, to secure the land from her husband’s liabilities, it was necessary the legal title should be conveyed to some other person, Hendon, and her husband, and herself, made the deeds to Hays, to be held for her sole and separate use, and subject to her disposal; “that she designed and intended her deed to have the operation and effect of a deed of trust,,” and a fraud is charged for causing the deed to he prepared as an absolute deed, without a trust. To these charges the defendant was called upon to answer, and he has denied them all in the most peremptory terms.
He says, that the interest of her husband in her land, had been sold, as also all his personal property, and was then in possession of Hendon, who had permitted her to occupy a room in the house, Hendon’s wife and Hays’ wife being her nieces, and nearest of kin; that, after the property was sold, she and her [365]*365husband had separated; that Hendon intending to remove, was about to sell the land and bouse to a stranger, and in this state of things the complainant applied to him, and more than once urged him to purchase the property of Hendon, assuring him she did not expect to out live her husband, as her health was feeble, and that she always had intended to give her property to the wife of Hays, and if he would purchase Hendon’s interest, and procure her husband to join with her in a deed, she would convey her reversionary interest to him. Now it must depend upon the proofs in the cause, which of these conflicting statements we are to adopt, not, however, forgetting that the complainant is before us impeaching her own deed, nor that the defendant is entitled to have his answer respected, until overthrown by testimony.
As a preliminary remark, it may be said, that in a case where an old lady, not charged with the cares of a family, and circulating in a general society, had suddenly come again into the possession of her estate, after having seen it for many years in other hands, she would be very apt to furnish very impressive evidence of her conviction, at least, if not of her gratification, at such a restoration. In this ease, some of the witnesses have gone into all her declarations used in many conversations on the subject of the land and the deeds, and yet, until about the time of filing the bill, no one of the many persons who seem to have conversed with her, testify to a word from her, indicating any such conviction of the improvement in her pecuniary condition. It would also be most probable, that an owner, on being restored to the direction and control of property, and to the pernancy of netts and profits, under such circumstances, would not be slow to express to those concerned in the actual conduct of the estate, some distinct and intelligible indication of her claim to the substantial fruits of these rights. Such is the character of the evidence which would be consistent with the case alleged by the complainant. Let us see if it, meets this expectation.
Mrs. Mary Ann Smith, on whose testimony the appellee chielly relies, says the appellee, Mrs. Hollis, first applied to [366]*366the deponent for the money, (to pay Hendon,) “for the use of Haysj" that Hays obtained the money, through the agency of Mrs. Hollis, from Mrs. Herbert, who inquired iiow she was to be secured, that she wanted a mortgage, and asked whether Mrs. Hollis had given him a deed, and Hays replied, that Mrs. Hollis “had given him a deed:” on being asked by Mrs. Herbert what was to become of Mrs. Hollis, Hays told her “it was for her use or her good.” This last expression, is the only one sworn to by any witness in the cause as coming from Hays, which indicates any purpose on his part to hold the property in any other way than as absolute owner. But it must be taken in connection with other parts of the conversation. Hays then had a deed—both Mrs. Herbert and Mrs. Smith knew this fact—they knew it was a deed which enabled him to give a mortgage to secure the loan, and Mrs. Herbert had stated that Mrs. Hollis' reversion must be conveyed to effect this; in other words, Hays must have the fee-simple to give a satisfactory security. Surely, their, it was not possible that either Mrs. Herbert or Mrs. Smith could understand, that the deed was to give Flays a mere nominal title as trustee for the use of Mrs. Hollis. If they, then, were informed that Hays was to make a deed to any other person as trustee for Mrs. Hollis, it is certainly very remarkable, that not an allusion should be made to such an arrangement, but that, on the contrary, it was thought necessary or proper to admonish Mrs. Hollis of the danger she incurred in “making over her property” to Hays. Mrs.
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Chambers, J.,
delivered the opinion of this court.
The propositions of law, on which the appellee relies to sustain the decree in this case, may all be conceded, to wit: that a fraudulent deed can convey no title to the grantee; that relief will be given where oppression or imposition have been practiced, and that gross inadequacy of the price paid, is one of the evidences of such oppression or imposition; that where one person advances the purchase money for land, and a deed is taken in the name of another, a resulting trust is created by operation of law, in favor of the party advancing the purchase money, and that parol testimony may be resorted to, for the purpose of proving these facts, which, when established, take the case out of the statute of frauds. The material inquiry, then, is, has the testimony established such a state of case as these principles of law embrace?
Upon the bill and answer, alone, there can be no ground on which the complainant below, the appellee here, can claim relief. The agreement by Hays (the defendant below,) to purchase the property, as the friend of the complainant, and for her use, as alleged in the bill, is most positively denied. The bill avers, that complainant induced Hendon to sell his interest t,o Hays, for her advantage and use. The answer asserts, that [364]*364Hendon was about to sell to a stranger, when he was urged by complainant to interpose, not to purchase for her, but for himself; and in regard to the allegation, that Hays volunteered his agency in originating and arranging the conveyance from Hen-don, the answer asserts, and the proof is- clear, that Hays reluctantly engaged in the transaction.
The material charges in the original and supplemental bills, without stopping to notice apparent inconsistencies, are, that the conveyances to Hays were made “upon the express understanding and agreement, previously entered into between them, that Hays would hold the lands, and all the title and interest conveyed, in trust for her sole and separate use, an’d would pay to her the rents and profits as they accrued, and would after-wards execute a proper instrument declaratory of the trust, or would re-convey it to her in such manner as to secure it to her and her heirs, exclusive of her husband.”' That this-Was done in consequence of the suggestion by Hays, that it was necessary to avoid the waste of her property by her husband; that “'it was perfectly understood between them, he was to hold the property as trustee, and subject to her exclusive direction and control.”
The supplemental bill alleges, that the complainant supposing that, to secure the land from her husband’s liabilities, it was necessary the legal title should be conveyed to some other person, Hendon, and her husband, and herself, made the deeds to Hays, to be held for her sole and separate use, and subject to her disposal; “that she designed and intended her deed to have the operation and effect of a deed of trust,,” and a fraud is charged for causing the deed to he prepared as an absolute deed, without a trust. To these charges the defendant was called upon to answer, and he has denied them all in the most peremptory terms.
He says, that the interest of her husband in her land, had been sold, as also all his personal property, and was then in possession of Hendon, who had permitted her to occupy a room in the house, Hendon’s wife and Hays’ wife being her nieces, and nearest of kin; that, after the property was sold, she and her [365]*365husband had separated; that Hendon intending to remove, was about to sell the land and bouse to a stranger, and in this state of things the complainant applied to him, and more than once urged him to purchase the property of Hendon, assuring him she did not expect to out live her husband, as her health was feeble, and that she always had intended to give her property to the wife of Hays, and if he would purchase Hendon’s interest, and procure her husband to join with her in a deed, she would convey her reversionary interest to him. Now it must depend upon the proofs in the cause, which of these conflicting statements we are to adopt, not, however, forgetting that the complainant is before us impeaching her own deed, nor that the defendant is entitled to have his answer respected, until overthrown by testimony.
As a preliminary remark, it may be said, that in a case where an old lady, not charged with the cares of a family, and circulating in a general society, had suddenly come again into the possession of her estate, after having seen it for many years in other hands, she would be very apt to furnish very impressive evidence of her conviction, at least, if not of her gratification, at such a restoration. In this ease, some of the witnesses have gone into all her declarations used in many conversations on the subject of the land and the deeds, and yet, until about the time of filing the bill, no one of the many persons who seem to have conversed with her, testify to a word from her, indicating any such conviction of the improvement in her pecuniary condition. It would also be most probable, that an owner, on being restored to the direction and control of property, and to the pernancy of netts and profits, under such circumstances, would not be slow to express to those concerned in the actual conduct of the estate, some distinct and intelligible indication of her claim to the substantial fruits of these rights. Such is the character of the evidence which would be consistent with the case alleged by the complainant. Let us see if it, meets this expectation.
Mrs. Mary Ann Smith, on whose testimony the appellee chielly relies, says the appellee, Mrs. Hollis, first applied to [366]*366the deponent for the money, (to pay Hendon,) “for the use of Haysj" that Hays obtained the money, through the agency of Mrs. Hollis, from Mrs. Herbert, who inquired iiow she was to be secured, that she wanted a mortgage, and asked whether Mrs. Hollis had given him a deed, and Hays replied, that Mrs. Hollis “had given him a deed:” on being asked by Mrs. Herbert what was to become of Mrs. Hollis, Hays told her “it was for her use or her good.” This last expression, is the only one sworn to by any witness in the cause as coming from Hays, which indicates any purpose on his part to hold the property in any other way than as absolute owner. But it must be taken in connection with other parts of the conversation. Hays then had a deed—both Mrs. Herbert and Mrs. Smith knew this fact—they knew it was a deed which enabled him to give a mortgage to secure the loan, and Mrs. Herbert had stated that Mrs. Hollis' reversion must be conveyed to effect this; in other words, Hays must have the fee-simple to give a satisfactory security. Surely, their, it was not possible that either Mrs. Herbert or Mrs. Smith could understand, that the deed was to give Flays a mere nominal title as trustee for the use of Mrs. Hollis. If they, then, were informed that Hays was to make a deed to any other person as trustee for Mrs. Hollis, it is certainly very remarkable, that not an allusion should be made to such an arrangement, but that, on the contrary, it was thought necessary or proper to admonish Mrs. Hollis of the danger she incurred in “making over her property” to Hays. Mrs. Herbert “understood, that a deed was to be executed by Mrs. Hollis and Hendon, to Hays, and that Hays was to convey it back again to Mrs. Hollisbut when or from whom, or why she so understood, she does not inform us, nor does her deposition state one fact which justifies such an understanding. Of the large number of witnesses sworn, these two alone have testified to anything which looks like an agreement or acknowledgment of Hays, that a trust was contemplated, and we cannot but think, if this testimony and none other was before the court, without an answer and without [367]*367objection, there would be great difficulty iu determining that it proved any contract.
There is, however, a great preponderance of testimony to sustain the answer; Hendon’s wife was co-heiress apparent to Mrs. Hollis, yet, it had never been heard in his family that Hays was to hold the property as trustee.
Pierce, one of the magistrates who took her acknowledgment, deposes, that Mrs. Hollis spoke of the deed she was about to make to Hays, expressed the utmost gratification, when it was done, that she had ‘•■concludedwhat she had long had upon her mind;” that “she wanted Hays and his wife to have the property, she was getting old and they would support her.” Is this language consistent with the idea, that the deed was virtually a deed for her own exclusive benefit; a deed that did not give one farthing to Hays and his wife; a deed that gave the rents and profits, and the entire and exclusive control of the property, not to Hays, but to herself?
Norris, the other acting magistrate, proves, that Mrs. Hollis expressed herself well satisfied with what she had done; that “she always intended the land for Hays and his wife, that though it was not valuable, it would do for a home for them and their children.” Both depose, that she did not say one word about any trust in the deed, then or afterwards. Is this conduct or these declarations consistent with an existing conviction of title, vested by that deed, or to be vested by any future deed in herself?
Rogers deposes to a conversation with Mrs. Hollis, in which she not only expressed her reasons for giving the property to Hays, “all her right and title,” “for nothing,” but assigned the reason, that “ Mrs. Hays was the poorest of her nieces, and she wished her to have it;” and in frequent conversations, both before and after the deed, he “ never heard her intimate, that Hays held it in trust, or was to reconvey it to her or any one else.”
To all this mass of testimony the appellee’s counsel oppose the fact, that the inadequacy of price is, of itself, conclusive, either of fraud in procuring the deed or of a resulting trust. [368]*368We do not think this a case of inadequacy of price, or affected by the rules which govern that class of cases. There was, between these parties, no price paid at all—not one dollar—nor was it a sale. The purchase was made by Hays, of Hendon’s interest in the land and personal property, as we think the agreement required, and the consideration for that purchase is truly stated. Mrs. Hollis agreed to convey her reversionary interest to her niece’s husband, if he would purchase Hendon’s interest, and obtain the husband’s consent to unite in a deed. But, say the counsel, it is incredible that she would make such an arrangement, unless she is imbecile to a degree which demands the protection of the court, because it strips her of every farthing she has, and leaves her destitute. Well, she had the power to do this if she pleased, and witnesses, who are not impeached, swear, they cautioned her not to convey away all her estate, and yet she would do so. That she has no intellectual infirmity, which requires the interposition of chancery, is abundantly proved. But, is it the effect of this deed to reduce the complainant to a more destitute and dependent condition? The property had been sold, the personal, with no prospect of its ever being restored to her, and the land for the joint lives of her husband and herself, he being much younger and of better health- It had been held by her niece’s husband, and she had occupied part of the house; it was about to be. sold, and to be sold to a stranger, with every probability of her being turned out of the house. She had become displeased with the family of Mrs. Hendon, her niece, with whom she had resided, and her only near relative was Mrs. Hays, to whom it was her wish that all her property should go. It would seem to be a just expectation, that her condition without her deed, would be one of complete dependence, and her only reliance for assistance or comfortable accommodation, so far as the record shows, must have been alone upon Hays. She did, in fact, as she told one of the witnesses, expect Hays to take care of her. '
It was by no means, then, so very remarkable that she was willing to convey her reversionary title to Hays. It, afforded [369]*369her no part of a maintenance if she retained it, and it does not appear for what it would have sold, if put into the market, or that the idea of selling it was ever suggested by her or to her. By conveying it to Hays, she could reasonably expect to strengthen the claims, which already made it his duty to assist the aunt of his wife, and also effected a purpose which she seems to have cherished with much earnestness; not the less perhaps, after the domestic collision with her other niece’s family.
The appellee’s counsel has misapplied the law, which denies to a party claiming under a deed the privilege of sustaining it by any other consideration than that mentioned. The doctrine does not, most surely, allow a grantor or donor to destroy his own deed, by showing a consideration different from the one expressed on its face. Cases may occur where it may be indicative, to a greater or less extent, of fraud, imposition or imbecility, but a smaller or a different consideration never can, of itself, avail a grantor or donor of competent intellect to terminate the obligation of a solemn instrument, which he has executed with full knowledge and free consent.
Wo have been much pressed with the argument, that a resulting trust must be decreed, because the money paid by Hays was raised by loan, secured by a mortgage on the land, and not advanced, as it is said by Hays. The chancellor seems to have based bis decree on that ground. Now, if what we have assumed, be the facts of the case, there is no implication arising from the circumstance, that the money was furnished at the solicitation of Mrs. Hollis, or by pledge of the title- If Mrs. Hollis, herself, had furnished the money from her own purse to pay Hendon, with a view to secure the property to Hays, there would not still be a foundation for any such legal presumption in this case. No such trust will arise, where a settlement or donation is deliberately designed by a party competent to make it. See the case of Dyer and Dyer, While’s Eq. Cases, 138, with the very full references in the notes reported in 65 Law Lib, 167.
Indeed, the material fact of the advance by the complainant [370]*370of the purchase money to Hendon is not sustained, without which a resulting trust could not arise, so far as related to the interest conveyed by Hendon. Payment or advance of the purchase money by the party claiming the trust, before or at the time of the purchase, is indispensable. Here the purchase money was loaned, not to the complainant, but to Hays, and he alone became liable, personally, for the amount, besides giving the security of a mortgage.
The court will sign a decree, reversing the decree of the chancellor, and dismissing the complainant’s bill, but, under the circumstances, without costs.
DECREE REVERSED,AND
BILL DISMISSED.