Chancellor.
On the opening of this cause, it struck me on the very threshold of the argument, that the steps heretofore taken in it placed it in a posture, at once novel and embarrassing, as to what further action, if any, should be taken by this Court. The subsequent reflection which I have bestowed upon the case,, has served to strengthen, rather than remove my first impression. The case was originally instituted in the Court of Chancery existing under the old constitution. One of the original counsel having been elevated to the Chancery bench, pending the case before that court, it was transferred, according to the provisions of a statute upon that subject, to the then existing Supreme Court, whose duty it was made to decide the case, and certify their decision back to the Court of Chancery, to be entered as the final judgment of that court.
The Supreme Court proceeded to pronounée an original decree, foreclosing the mortgage, and directing a general execution for any balance that the mortgaged property might fail to bring ; which decree was certified to the Court of Chancery. The defendant after-wards filed his bill of review, alleging various errors in the decree, which was placed upon the docket of the then Supreme Court.
Thus things stood until after the adoption of the present constitution, creating the High Court of Errors and Appeals, and declaring that it should £< 'have no jurisdiction but such as properly belongs to a court of errors and appeals.” The bill of review was then taken up by that tribunal, and sustained, reversing tihat portion of the decree authorizing execution generally, and remanding the case [485]*485to this Court for further proceedings. It is not pretended, that this decision was given by that court in its appellate character. What influence that decision is to exert over the case in its present situation, has been to me a. question of exceeding delicacy and embarrassment. That jurisdiction of a bill of review does not belong to a tribunal having mere appellate jurisdiction, is, I think, perfectly clear. Bills of review are classed, by Lord Redesdale, as bills in the nature of original bills. Mit. Pl. 122, (3d Am. ed.) If this is their true character; if they partake of the nature of an original bill in chancery, it would seem difficult to sustain the jurisdiction of a court, that is declared to “ have no jurisdiction but such as belongs to a court of errors and appeals.” The proceeding on a bill of review is aptly distinguishable from that on an appeal, in this : a bill of review is to be heard before the same judge or jurisdiction, that gave the decree which is sought to be reviewed ; whilst an appeal is the transfer of a judgment or decree of an inferior, to a superior tribunal, the latter having the power of revising and correcting the proceedings of the former. It is obvious, that the case was not before the High Court of Errors and Appeals, by writ of error or appeal, and yet these seem to be the only channels through which a cause can be constitutionally transferred to that court. The old Supreme Court, that gave the decree to which this bill of review was filed, took cognizance of the case asa court of chancery, exercising original jurisdiction. The decree, in legal contemplation, stood, therefore, as though it had been pronounced by the Chancellor himself, presiding in equity. Would the High Court of Errors and Appeals entertain original jurisdiction of a bill of review to a decree pronounced by this Court ? Surely, they would not: and yet, I am persuaded it would be difficult, on principle, to distinguish the one case from the other. Indeed, I understand that court has decided, that they could not take jurisdiction of the cases remaining on the old Supreme Court docket, which had been transferred there under the statute referred to: their jurisdiction being more restricted by the constitution, than was that of the former court. This decision would seem to be conclusive .against the jurisdiction taken by that court in the present case. The questions, whether a bill of review was in the nature of an original bill, and whether original [486]*486jurisdiction of it did not belong exclusively to the same jurisdiction that gave the decree, do not seem to have been raised in the reported arguments of counsel, nor adverted to in the opinion of the Court on the bill of review. If the attention of that court had been directed to these questions, I am persuaded there would have been no doubt of the result. But that court having entertained jurisdiction of the bill of review, after reversing the decree for a mere error in law apparent upon the face of it, nothing remained but for them to correct the error, and give the decree its proper legal character. The case having been transferred from this Court by operation of law, it could only be returned here with a final decree for execution, and not for any new decree by this Court.
It does not necessarily follow, upon sustaining a bill of review for error apparent upon the face of a decree, that the whole case is opened up, for examination de novo. Where a case is ready, in all its features, for a final decree, and the Court commits some error in rendering that decree, it should, upon sustaining the bill of review, proceed at the same time to correct the error, so as to make the decree conform to the law of the case. If, however, the error complained of arises from the fact that the case was not in a proper attitude for final hearing, and a bill of review is sustained, then the whole case is open for reexamination. These views of the practice upon this subject may be thus illustrated : —■ Suppose a decree rendered against an infant, without giving him a day to show cause against it; for this error it would be reversed, by a bill of review ; but the case would not thus be opened for a general rehearing ; the Court would, by the same sentence which declared a reversal of the decree, proceed to correct the error complained of. On the other hand, if a decree by default was rendered against an infant, and this fact appeared, it would be error, for which a bill of review would lie; and in that instance, the case would stand open for further proceedings ; because something would have to be done by the parties, to put the ;case in an attitude for final hearing. Upon a bill of review for error on the face of the decree, no investigation on the merits can take place, not even though the matters decreed are contrary to the proofs in the cause. Milish v. Williams, 1 Vernon, 166. In the language of Lord Eldon, “ the question is not, whether the cause is [487]*487well decided, but whether the decree is right or wrong upon the face of it.” Perry v. Phelps, 17 Ves. 178. In a cause, then, where the decree is reversed for error on the face of it, and where no further proceedings are required in order to a final hearing, the Court should at once correct the error, and let the decree, thus corrected, stand as the final decree of the Court. These reflections have led me to doubt whether I could take any further cognizance of the case, but as the counsel on both sides seem tacitly to have conceded that the case was properly here, I am induced (but not without great distrust of its propriety) to attempt some proper disposition of the case. It must be to make such decree, as the original one made in the cause, subject to the correction for which it was reversed. I am the more inclined to this, because satisfied with the conclusion to which the old Supreme Court came.
The testimony is extremely imperfect and unsatisfactory.
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Chancellor.
On the opening of this cause, it struck me on the very threshold of the argument, that the steps heretofore taken in it placed it in a posture, at once novel and embarrassing, as to what further action, if any, should be taken by this Court. The subsequent reflection which I have bestowed upon the case,, has served to strengthen, rather than remove my first impression. The case was originally instituted in the Court of Chancery existing under the old constitution. One of the original counsel having been elevated to the Chancery bench, pending the case before that court, it was transferred, according to the provisions of a statute upon that subject, to the then existing Supreme Court, whose duty it was made to decide the case, and certify their decision back to the Court of Chancery, to be entered as the final judgment of that court.
The Supreme Court proceeded to pronounée an original decree, foreclosing the mortgage, and directing a general execution for any balance that the mortgaged property might fail to bring ; which decree was certified to the Court of Chancery. The defendant after-wards filed his bill of review, alleging various errors in the decree, which was placed upon the docket of the then Supreme Court.
Thus things stood until after the adoption of the present constitution, creating the High Court of Errors and Appeals, and declaring that it should £< 'have no jurisdiction but such as properly belongs to a court of errors and appeals.” The bill of review was then taken up by that tribunal, and sustained, reversing tihat portion of the decree authorizing execution generally, and remanding the case [485]*485to this Court for further proceedings. It is not pretended, that this decision was given by that court in its appellate character. What influence that decision is to exert over the case in its present situation, has been to me a. question of exceeding delicacy and embarrassment. That jurisdiction of a bill of review does not belong to a tribunal having mere appellate jurisdiction, is, I think, perfectly clear. Bills of review are classed, by Lord Redesdale, as bills in the nature of original bills. Mit. Pl. 122, (3d Am. ed.) If this is their true character; if they partake of the nature of an original bill in chancery, it would seem difficult to sustain the jurisdiction of a court, that is declared to “ have no jurisdiction but such as belongs to a court of errors and appeals.” The proceeding on a bill of review is aptly distinguishable from that on an appeal, in this : a bill of review is to be heard before the same judge or jurisdiction, that gave the decree which is sought to be reviewed ; whilst an appeal is the transfer of a judgment or decree of an inferior, to a superior tribunal, the latter having the power of revising and correcting the proceedings of the former. It is obvious, that the case was not before the High Court of Errors and Appeals, by writ of error or appeal, and yet these seem to be the only channels through which a cause can be constitutionally transferred to that court. The old Supreme Court, that gave the decree to which this bill of review was filed, took cognizance of the case asa court of chancery, exercising original jurisdiction. The decree, in legal contemplation, stood, therefore, as though it had been pronounced by the Chancellor himself, presiding in equity. Would the High Court of Errors and Appeals entertain original jurisdiction of a bill of review to a decree pronounced by this Court ? Surely, they would not: and yet, I am persuaded it would be difficult, on principle, to distinguish the one case from the other. Indeed, I understand that court has decided, that they could not take jurisdiction of the cases remaining on the old Supreme Court docket, which had been transferred there under the statute referred to: their jurisdiction being more restricted by the constitution, than was that of the former court. This decision would seem to be conclusive .against the jurisdiction taken by that court in the present case. The questions, whether a bill of review was in the nature of an original bill, and whether original [486]*486jurisdiction of it did not belong exclusively to the same jurisdiction that gave the decree, do not seem to have been raised in the reported arguments of counsel, nor adverted to in the opinion of the Court on the bill of review. If the attention of that court had been directed to these questions, I am persuaded there would have been no doubt of the result. But that court having entertained jurisdiction of the bill of review, after reversing the decree for a mere error in law apparent upon the face of it, nothing remained but for them to correct the error, and give the decree its proper legal character. The case having been transferred from this Court by operation of law, it could only be returned here with a final decree for execution, and not for any new decree by this Court.
It does not necessarily follow, upon sustaining a bill of review for error apparent upon the face of a decree, that the whole case is opened up, for examination de novo. Where a case is ready, in all its features, for a final decree, and the Court commits some error in rendering that decree, it should, upon sustaining the bill of review, proceed at the same time to correct the error, so as to make the decree conform to the law of the case. If, however, the error complained of arises from the fact that the case was not in a proper attitude for final hearing, and a bill of review is sustained, then the whole case is open for reexamination. These views of the practice upon this subject may be thus illustrated : —■ Suppose a decree rendered against an infant, without giving him a day to show cause against it; for this error it would be reversed, by a bill of review ; but the case would not thus be opened for a general rehearing ; the Court would, by the same sentence which declared a reversal of the decree, proceed to correct the error complained of. On the other hand, if a decree by default was rendered against an infant, and this fact appeared, it would be error, for which a bill of review would lie; and in that instance, the case would stand open for further proceedings ; because something would have to be done by the parties, to put the ;case in an attitude for final hearing. Upon a bill of review for error on the face of the decree, no investigation on the merits can take place, not even though the matters decreed are contrary to the proofs in the cause. Milish v. Williams, 1 Vernon, 166. In the language of Lord Eldon, “ the question is not, whether the cause is [487]*487well decided, but whether the decree is right or wrong upon the face of it.” Perry v. Phelps, 17 Ves. 178. In a cause, then, where the decree is reversed for error on the face of it, and where no further proceedings are required in order to a final hearing, the Court should at once correct the error, and let the decree, thus corrected, stand as the final decree of the Court. These reflections have led me to doubt whether I could take any further cognizance of the case, but as the counsel on both sides seem tacitly to have conceded that the case was properly here, I am induced (but not without great distrust of its propriety) to attempt some proper disposition of the case. It must be to make such decree, as the original one made in the cause, subject to the correction for which it was reversed. I am the more inclined to this, because satisfied with the conclusion to which the old Supreme Court came.
The testimony is extremely imperfect and unsatisfactory. There is no one of the witnesses who attempts to prove the distinct existence of any contract or agreement, as being made and agreed upon between Stark and Farrar, either at or before the purchase made by Farrar. The whole testimony upon the subject rests upon the vague declarations of Farrar, made in casual conversations, held with some of the witnesses.- Indeed, those witnesses, whose relation to the parties at the time of the transaction gave them the best opportunity of knowing its character, say they heard nothing of any such contract, agreement, or trust, as the one attempted to be set up by the complainant. The testimony of Beverly proves, that Farrar “ uniformly told him that he bought them (the land and negroes) for the purpose of saving the claim he had against Stark.”
To the second interrogatory, he says, that Farrar “ told him that it w7as perfectly understood, that Stark was at liberty to redeem, at any time, if he could ; and if not, the proceeds of any sale of the property, over and above his claim against Stark, were fully intended to go to Stark’s future benefit.” With all the affected minuteness of this deposition, its vagueness and generality are strikingly illustrative of the danger of admitting this kind of testimony to set up and establish a trust in relation to real estate. When was it “ understood that Stark was at liberty to redeem, at any time, if he could ?” Did this understanding take place before, at, or after [488]*488the sale ? and was it the purpose and inducement with Farrar, in making the purchase ? This same witness says, that Farrar uniformly told him, that he purchased the land and slaves to save a claim he had against Stark. Does this testimony sustain the statement of the defendant’s answer, that the purchase was made “solely” for his benefit, and to be held for his use ? To enforce a specific trust upon real estate, from such loose and equivocal expressions, made by one of the parties, in mere social conversations, held at different times, would be inconsistent, not only with the spirit and policy of the statute of frauds, but with the general rules of evidence. It is necessary that the parol declarations of a trust should be clear and unambiguous, before the Court can change the absolute nature of a conveyance, and decree the execution of a trust, not expressed in the deed. Slocum v. Marshall, 2 Wash. C. C. R. 398.
It is not the case of a complainant alleging a particular state of facts, from which he is attempting to setup and establish a resulting trust, as a conclusion of law. Trusts are either express or implied. The one arising from contract, fixing and defining its terms, the other from implication of law, upon the presumed intention of parties. The existence of an express trust necessarily excludes the idea of an implied trust, in relation to the same thing. A resulting trust is the' mere creature of equity, and cannot arise, therefore, where the parties have declared an express trust. Peggett v. Dubois, 5 Paige, 114.
It has been attempted to assimilate this case to that of the purchase-money of a tract of land being paid by one person, arid the title taken in the name of another ; but there is no evidence to prove in this case any loan of money by Farrar, or anything approaching it.
Let a decree be prepared, directing a foreclosure and sale of the mortgaged premises.