Sargent, J.
The case finds that the arrangement and agreement, under which the purchase was made, was that the parties should unite in purchasing the land, and that each should have one fifth part thereof; that each furnished his equal proportion of the money that was paid at the time, and they all signed the notes given for the balance of the purchase money; but the deed was made to only one, and he signed the notes as principal and the others as sureties only; and from this it is claimed that there can be no resulting trust to those who signed as such sureties.
There is no doubt, in ordinary cases, where a man purchases land and gives his note for it, and procures one or more other persons to sign said note as his sureties, and this is all the arrangement there is in the case, even though the sureties, in the end, should be obliged to pay the whole note, they would acquire no equitable interest in the land by such payment. But where the agreement, at [302]*302the time of the purchase, was that each should pay his equal share, and so far as the payment was made down, they did thus pay, and gave their notes with the express agreement that each should pay his equal share of the whole, and be entitled to his share of the land, that would in law create a resulting trust to each for his share of the land, as against the one who had the deed in his own name.
And in the case before us it seems evident that the reason why the notes were given in the form they were, was that the land was purchased for the purposes of speculation, and Clement would be much more likely to sell his land for a reasonable price to one man, and that perhaps his neighbor, without knowledge of the intended speculation, than he would to several men, knowing such to be their purpose. Hence we. see the negotiation was all made with Clement by Hopkinson, the deed taken to him alone, and he paid over the $1000 in cash and gave notes,_on the face of which he was principal and the other parties sureties; yet the others all furnished their proportion of the cash paid, and it was agreed that these notes should all be considered and treated as between themselves as the joint and several notes of all, and be paid in equal proportions between them ; so that in fact from the time of the purchase there was a trust in behalf of all.
It was not necessary that Clement should know any thing about the arrangement in order to constitute the trust. Whitt was paid down was equally in fact the money of each, and so far, then, would arise a resulting trust, and we can not see any difference in the effect of the notes given for the residue. They were all to pay an equal proportion. The notes were given and received as so much money in payment for the land, and, $s between themselves, it may be well enough considered that they were each principal for the proportion which each was to pay and sureties for all the rest, for their several propor[303]*303tions. And however they may have stood on the face of the note, and however they may have agreed to stand, so far as the payee was concerned, yet there is no objection to proving by parol in any case that now occurs to us, what was the real situation and the true relation of the several signers of the note as between themselves.
So that we see no objection on this proof, to holding that there was, in this case, prior to the giving of the receipt by Hopldnson, and that there would have been, without any such receipt, a resulting trust to each of those who signed the notes as sureties. Our statute provides that “ no trust concerning lands, excepting such as may arise or result by implication of law, shall be created or declared, unless by an instrument signed by the party creating the same, or by his attorney.” líev. Stat., ch. 130, see. 13 ; Oomp. Laws 290.
But although a trust can not be created or declared by parol evidence, yet a resulting trust may be shown by that kind of proof; it may be proved, rebutted or discharged by parol evidence. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Page v. Page, 8 N. H. 187; Brooks v. Fowle, 14 N. H. 248; Pembroke v. Allenstown, 21 N. H. 107; Gove v. Lawrence, 26 N. H. 484; Tebbetts v. Felton, 31 N. H. 273. Parol evidence is admissible to show a resulting trust, but not to show any other. Farrington v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 382.
So that if there -were no trust declared in the case in writing, there would seem to be no difficulty in holding that a trust upon the facts stated, resulted by operation of law. But we think that this is not perhaps the more correct view to take of the case. Here is a trust declared in writing, which, although dated after the date of the deed, evidently contains the agreement and understanding of the parties, not only at the time of its date, but also at the date of the deed, and we think this written declara[304]*304tion of the trust should he and must he' considered as part of the original transaction, and that the giving of the deed, the agreements and the giving of this writing should be considered together, as one transaction, as the different parts of the same contract and agreement.
The "trust declared in the writing is evidently the same that had existed prior to its date, and includes evidently the full agreement that was made originally, that all the time continued to exist between the parties until the new arrangement by which Hopkinson bought the others out and gave back a mortgage of the premises to them as their security. Taking the deed to Hopkinson and the money paid, the notes given, and the writing given back to them declaring the trust, as parts of the same transaction and as containing the whole of the arrangement between them, from the beginning, we are left in no doubt about the rights of the parties so far. And the only remaining question is, the one arising out of the sale to Hopkinson, and the mortgage back of the same premises, on the 13th day of May, 1857.
We do not understand that there is any question made but what the arrangement then made was such that whatever interest was conveyed to Hopkinson by the others, was at the same time reconveyed by him to them in mortgage. His seizin of such interest as they conveyed, was but instantaneous. To be sure they gave him no deed of any right, nor did they need to do so. He had the legal title before. Their’s was the equitable, the trust estate, which did not appear of record, and which would have been unavailable to them as against a creditor of or a purchaser from said Hopkinson, without notice of the existence of such estate.
It is claimed that this written agreement does not create a trust estate in the lands; that it gives only certain equitable rights, but no present estate, so that a court of equity, upon an application of the cestuis que trust, could [305]*305not have decreed a conveyance of the legal title, except upon the performance of certain conditions precedent, to be pei’formed by themselves.
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Sargent, J.
The case finds that the arrangement and agreement, under which the purchase was made, was that the parties should unite in purchasing the land, and that each should have one fifth part thereof; that each furnished his equal proportion of the money that was paid at the time, and they all signed the notes given for the balance of the purchase money; but the deed was made to only one, and he signed the notes as principal and the others as sureties only; and from this it is claimed that there can be no resulting trust to those who signed as such sureties.
There is no doubt, in ordinary cases, where a man purchases land and gives his note for it, and procures one or more other persons to sign said note as his sureties, and this is all the arrangement there is in the case, even though the sureties, in the end, should be obliged to pay the whole note, they would acquire no equitable interest in the land by such payment. But where the agreement, at [302]*302the time of the purchase, was that each should pay his equal share, and so far as the payment was made down, they did thus pay, and gave their notes with the express agreement that each should pay his equal share of the whole, and be entitled to his share of the land, that would in law create a resulting trust to each for his share of the land, as against the one who had the deed in his own name.
And in the case before us it seems evident that the reason why the notes were given in the form they were, was that the land was purchased for the purposes of speculation, and Clement would be much more likely to sell his land for a reasonable price to one man, and that perhaps his neighbor, without knowledge of the intended speculation, than he would to several men, knowing such to be their purpose. Hence we. see the negotiation was all made with Clement by Hopkinson, the deed taken to him alone, and he paid over the $1000 in cash and gave notes,_on the face of which he was principal and the other parties sureties; yet the others all furnished their proportion of the cash paid, and it was agreed that these notes should all be considered and treated as between themselves as the joint and several notes of all, and be paid in equal proportions between them ; so that in fact from the time of the purchase there was a trust in behalf of all.
It was not necessary that Clement should know any thing about the arrangement in order to constitute the trust. Whitt was paid down was equally in fact the money of each, and so far, then, would arise a resulting trust, and we can not see any difference in the effect of the notes given for the residue. They were all to pay an equal proportion. The notes were given and received as so much money in payment for the land, and, $s between themselves, it may be well enough considered that they were each principal for the proportion which each was to pay and sureties for all the rest, for their several propor[303]*303tions. And however they may have stood on the face of the note, and however they may have agreed to stand, so far as the payee was concerned, yet there is no objection to proving by parol in any case that now occurs to us, what was the real situation and the true relation of the several signers of the note as between themselves.
So that we see no objection on this proof, to holding that there was, in this case, prior to the giving of the receipt by Hopldnson, and that there would have been, without any such receipt, a resulting trust to each of those who signed the notes as sureties. Our statute provides that “ no trust concerning lands, excepting such as may arise or result by implication of law, shall be created or declared, unless by an instrument signed by the party creating the same, or by his attorney.” líev. Stat., ch. 130, see. 13 ; Oomp. Laws 290.
But although a trust can not be created or declared by parol evidence, yet a resulting trust may be shown by that kind of proof; it may be proved, rebutted or discharged by parol evidence. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Page v. Page, 8 N. H. 187; Brooks v. Fowle, 14 N. H. 248; Pembroke v. Allenstown, 21 N. H. 107; Gove v. Lawrence, 26 N. H. 484; Tebbetts v. Felton, 31 N. H. 273. Parol evidence is admissible to show a resulting trust, but not to show any other. Farrington v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 382.
So that if there -were no trust declared in the case in writing, there would seem to be no difficulty in holding that a trust upon the facts stated, resulted by operation of law. But we think that this is not perhaps the more correct view to take of the case. Here is a trust declared in writing, which, although dated after the date of the deed, evidently contains the agreement and understanding of the parties, not only at the time of its date, but also at the date of the deed, and we think this written declara[304]*304tion of the trust should he and must he' considered as part of the original transaction, and that the giving of the deed, the agreements and the giving of this writing should be considered together, as one transaction, as the different parts of the same contract and agreement.
The "trust declared in the writing is evidently the same that had existed prior to its date, and includes evidently the full agreement that was made originally, that all the time continued to exist between the parties until the new arrangement by which Hopkinson bought the others out and gave back a mortgage of the premises to them as their security. Taking the deed to Hopkinson and the money paid, the notes given, and the writing given back to them declaring the trust, as parts of the same transaction and as containing the whole of the arrangement between them, from the beginning, we are left in no doubt about the rights of the parties so far. And the only remaining question is, the one arising out of the sale to Hopkinson, and the mortgage back of the same premises, on the 13th day of May, 1857.
We do not understand that there is any question made but what the arrangement then made was such that whatever interest was conveyed to Hopkinson by the others, was at the same time reconveyed by him to them in mortgage. His seizin of such interest as they conveyed, was but instantaneous. To be sure they gave him no deed of any right, nor did they need to do so. He had the legal title before. Their’s was the equitable, the trust estate, which did not appear of record, and which would have been unavailable to them as against a creditor of or a purchaser from said Hopkinson, without notice of the existence of such estate.
It is claimed that this written agreement does not create a trust estate in the lands; that it gives only certain equitable rights, but no present estate, so that a court of equity, upon an application of the cestuis que trust, could [305]*305not have decreed a conveyance of the legal title, except upon the performance of certain conditions precedent, to be pei’formed by themselves. But without considering or discussing that point, and without stopping here to inquire what difference there would be, if any, between the trust here created and a trust estate created by deed and appearing of record, let us for the purposes of this case assume that Coffin and the others had a present equitable estate in the premises, just the same as though the deed which conveyed the premises to Hopkinson had declared the trust and given to Coffin and others an equitable estate which appeared of record, and that this equitable estate had been conveyed to Hopkinson by deed at the time when the mortgage was given back by him.
Upon this supposition, the question that arises is, where the legal and equitable estates meet in the same person, but by different conveyances, at different times, and he thereby becomes seized in fee of the whole estate, which estate merges in the other, and which draws the other after it ? Does the equitable estate merge in the legal, and the title in fee to the whole relate back to and date from the commencement of the legal estate ? If this be so, then the plaintiff takes dower in the whole premises.
But, if the opposite doctrine be true, that the legal title merges in the equitable, on becoming united in the same person, and his title in fee relates back only to and dates from the commencement of his equitable interest, then this plaintiff does not take dower in any but her husband’s one fifth part of the premises, because his seizin, upon that hypothesis, was only instantaneous. It becomes necessary to ascertain which of these estates is to control the other, when they become united, in order to see which of them dower shall follow ; because, at common law, which is the law of this state in this particular, dower could not be taken in either estate alone.
[306]*306A widow of a trustee shall not have dower. Robinson v. Codman, 1 Sum. 121; Germond v. Jones, 2 Hill 569; Cooper v. Whitney, 3 Hill 101; Coster v. Lorillard, 14 Wend. 314. In England there is at law no dower in a trust estate, whether the husband have himself parted with the legal title before marriage, reserving only a trust, or whether a trust estate has been directly limited to him by a third person. And the same rule applies where the husband purchases an estate in the name of a trustee who acknowledges the trust after his death. Ray v. Pung, 5 B. & Ald. 561; 2 Bl. Com. 337; 1 Hill, on Eeal Prop. 323. VSo that, so long as the legal and equitable estates remained separate, no dower could be claimed, and no inchoate right of dower could be acquired on either side.y
But where both estates are united in one person,-one must merge in the other, because a man can not be trustee for himself. In Goodright v. Wells, Douglass 741, the question arose as to whether, in a case of this kind, “the equity should follow the law, or draw the law after it.” It was a case in which an only child inherited the legal estate in lands from his mother, and the equitable estate from his father ; and, dying without issue, the estate was claimed on the one side by his legal heirs ex parte materna, and on the other side by those ex parte paterna ; and it was held that the equitable estate should merge in the legal, and that both should follow the line through which the legal estate descended ; the whole property in that ease going to the heirs on the part of the mother.
It was there learnedly argued that, before the statute of uses, the use was considered, in most respects, as the complete ownership of the land, that the estate of the feoffee was subservient to the cestui que use, and that the former could do nothing to defeat the interest of the latter, unless by alienation for a valuable consideration without notice; that the statute of uses completed this subserv[307]*307iency by consolidating tbe legal estate with the use, or by merging the legal estate in the equitable; and that by analogy to uses thus considered, trust estates had been and should be held to be the solid and substantial ownership of the land, and the trustee the mere instrument of conveyance; that where a party holds by two titles, the law considers him as taking by the best; that the trust estate, being the best, must control the legal estate.
But the court held otherwise, deciding that the legal estate was the better title, and that the equitable title was merged the moment the two became united in the same person; that the legal drew after it the equitable estate, and that the latter was lost in the former; so that, upon the death of the son (the person in whom both estates had been united), the estate did not again open, and that the trust could not again be revived.
Lord Mansfield, in delivering his opinion in the case, says: “For the moment both [estates] meet in one person, there is an end of the trust. He has the legal estate, and all the profits, by his best title. A man can not be a trustee for himself. Why should the estates open upon his death ? What equity has one set of heirs more than another? He may dispose of the whole as he pleases, and if he does not, there is no room for chancery to interpose, and the rule of law must prevail.” And he seems to conclude that the weight of opinion and argument is, that the legal estate must draw the trust after it.
In the same case, Ashurst, J., says that “where the trust and legal estates join, they shall both go according to the legal estate.” Bailer, J., also says, that “ in a court of equity it has never been determined that an heir of one sort can hold as trustee for an heir of another sort. And if the question be tried in a court of law, the principle that, where two titles unite, the party shall be in of the best, prevails, and the clear fee-simple estate (the legal interest) which descends from the mother is the better [308]*308title. The trust, in this case, was merged and gone.” The same principle was sustained in Doe v. Patt, Douglass 684; and afterward by Lord Thurlow, in Wade v. Paget, 1 Brown C. C. 364; Phillips v. Bridges, 3 Ves. 126; Selby v. Alston, 3 Ves. 339; Nicholson v. Halsey, 1 Johns. Ch. 417; Gardner v. Astor, 3 Johns. Ch. 53; Hill, on Beal Prop., ch. 24, sec. 27.
Upon the principle deduced from these authorities, it would seem evident that, when the two estates were united in the plaintiff’s husband, the trust estate became at once merged and lost. It was consolidated into, overshadowed by, and swallowed up in the legal estate. The law of the legal estate regulates and governs its descent and distribution, and dower must be taken by the same law.
We have considered the question as though here had been originally a trust estate, created by deed and appearing of record; and coming to the conclusion we have upon that supposition, it becomes unnecessary to inquire farther into the defendant’s case, because the facts assumed by us above are at least as favorable to the defendant as any that can be made out of the agreed case, and might be found to be much more so upon investigation, though on that subject we express no opinion. And the above authorities would seem to be decisive, also, of the defendant’s rights — in fact, of the rights of both parties — not only at law, but also in equity. We are, therefore, of opinion that the plaintiff must prevail in her claim for dower in the whole of the premises described in her declaration; and judgment must be rendered for the plaintiff accordingly, and for damages for detention, to be fixed according to the provisions of the case.