Harrington, J.,
delivered the opinion of the court.
After stating the case
ut ante.
“It has been long established in England, that upon sufficient proof of trust money having been laid out in the purchase of land, a trust would result to those entitled to the money; and the later cases establish that the fact of such purchase may be proved by paroi evidence.
Sugd.
455. Much greater strictness was formerly required in the proof of the application of the trust money to the specific purchase. It is still held, that when the conveyance is taken in the name of the trustee without the trust appearing on the face of the deeds, the estate will not be liable to the trusts unless the application of the purchase money can be
clearly
proved.
Sugd.
427.
Upon a review of the cases, it will appear that the doubt has been father upon the proof than as to the application of principles of equity. In some cases the court has resorted to implications in support of the lien arising from the inability of the trustee to purchase with his own funds, and from his being under an obligation to make such an investment of the trust money. On the other hand it has been held, that where the trustee was not under an obligation to make the specific investment, or where he considered himself entitled to the trust money, no presumption could be raised, in opposition to this fact, that he intended any lands he may have bought with the trust money, to be subject to the trust.
In
Perry
vs. Philips, 4
Vezey
117, the Lord Chancellor
(Lough-borough,)
says ‘I can find no case, no authority or principle, that enables me where there is not a ground of presumption, where in point of fact I must be satisfied the party did not mean to execute the trust, or conceive himself to be under a trust, to hold that the estate he purchased is subject to the trust.’
And
Fonblanque (Fonb. Eq.
120,) in remarking on this opinion says ‘That
from
this observation of Lord Loughborough, it may be collected that in his lordship’s opinion, it is not only necessary that the trustee be under an obligation to purchase land, but that he be apprised of such obligation, and that nothing appears to rebut the presumption of his intention to discharge it.’
In investigating the fact of the purchase of these lands by James M. Broom the trustee, with the trust money, and for the purposes of the trust, the first remark upon the evidence, suggested by the principle of the cases referred to, is, that he was under no obligation to invest this trust money in the purchase of land; and that he was perfectly competent from other sources, to buy these lands for his own use. The will.of Jacob Broom so far from directing the proceeds of his property to be invested in real estate, orders all his real estate to be converted into money, to create a fund to be applied and distributed according to the directions of his will: and that part of this fund bequeathed to complainants, is directed to be paid ‘to trustees
to
hold’ for the use of complainants in specified proportions ‘the proceeds thereof to be paid to them’ as directed by the said will. And that it was so
held
by James M. Broom, without reference to any specific investment in real estate, appears from his administration and trustee accounts charging himself with the money; and from the payment of interest to the legatees which he alledges in the deed of assignment to Lowber, to have been a principal cause of his embarrassment. There is, therefore, from these facts, no ground of presumption that Broom conceived himself to be under an obligation in the execution of his trust, to invest this money in land, nor that in the purchase of this property, his object and intention were to discharge such obligation. And, connected with the fact of the conveyance being taken in his name without any mention of the trust, it is a case where the complainants will be held to
strict proof
of the application of the purchase money.
What is the proof relied on? It consists in the declaration of trust made by J. M. Broom, in the deed of assignment to Lowber. Jacob Broom the testator, died in 1810. From that time until the
date of this assignment in 1826, James M. Broom purchased and held a large real estate in Pennsylvania, Delaware, Maryland and Ohio, far exceeding the amount of money due from him to the complainants. The conveyances were all made to him personally without any mention of a trust; and he occupied, improved, sold, mortgaged and otherwise charged them with his own responsibilities as his own property. He held himself out to the world as the proprietor; and upon the general security of these lands he obtained credit. At the same time, he treated his liability to complainants as a
debt
due from him to them
personally,
not charged upon or invested in any particular portion of his estate. In his trustee account he charged himself with money; he received the rents and profits of the lands as his own, and, though these were inadequate, as he alledges, to keep down the interest of the sum due the legatees under his father’s will, he still considered himself liable to the amount of that interest. Under these circumstances, being embarrassed by this debt and by judgments and mortgages standing against him at the suit of respondents, he executed a deed in 1826, to John Lowber, conveying him all his land in Delaware, Maryland, Ohio or elsewhere, except in Pennsylvania, in trust to pay off these legacies to such of the legatees as should execute a release. The recital to this deed contains the declaration of trust upon which it is designed to establish that these lands were bought with the trust money in execution of the trust, and that the equitable title thereto, had always been in the
cestuis que trust
and not in Broom. This deed recites that certain sums of money had come to the hands of J. M. Broom as executor and trustee under the will of his father ‘which have not been paid over to the persons entitled to the same
or invested in any separate and distinct investment by him as trustee;
but that the said J. M. Broom with the said moneys, hath purchased sundry par-eels of real estate, intending that the same should be holden for the use and security of the persons so entitled to the said moneys. ’ This declaration, if disconnected from the facts in the cause could not be considered as very unequivocal: it sets out with the distinct avowal that the money had not been invested in any separate and distinct investment by him as trustee. But considered in connection with the evidence it amounts to nothing more than this, that Mr. Broom being indebted to certain legatees, holding in his hands a fund which he was directed by the will of his father to hold and to pay over the proceeds to the legatees, made frequent purchases of lands and real estate without any reference to his trust, but which he regarded with all the rest of his property, as a
security
for the debt due to these legatees. The idea of an investment of their money in real estate for their
use
so as to give them a title to the land is totally inconsistent with all his conduct in relation to the land that he purchased and held. The expensive improvements of Tusculum made by Mr.
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Harrington, J.,
delivered the opinion of the court.
After stating the case
ut ante.
“It has been long established in England, that upon sufficient proof of trust money having been laid out in the purchase of land, a trust would result to those entitled to the money; and the later cases establish that the fact of such purchase may be proved by paroi evidence.
Sugd.
455. Much greater strictness was formerly required in the proof of the application of the trust money to the specific purchase. It is still held, that when the conveyance is taken in the name of the trustee without the trust appearing on the face of the deeds, the estate will not be liable to the trusts unless the application of the purchase money can be
clearly
proved.
Sugd.
427.
Upon a review of the cases, it will appear that the doubt has been father upon the proof than as to the application of principles of equity. In some cases the court has resorted to implications in support of the lien arising from the inability of the trustee to purchase with his own funds, and from his being under an obligation to make such an investment of the trust money. On the other hand it has been held, that where the trustee was not under an obligation to make the specific investment, or where he considered himself entitled to the trust money, no presumption could be raised, in opposition to this fact, that he intended any lands he may have bought with the trust money, to be subject to the trust.
In
Perry
vs. Philips, 4
Vezey
117, the Lord Chancellor
(Lough-borough,)
says ‘I can find no case, no authority or principle, that enables me where there is not a ground of presumption, where in point of fact I must be satisfied the party did not mean to execute the trust, or conceive himself to be under a trust, to hold that the estate he purchased is subject to the trust.’
And
Fonblanque (Fonb. Eq.
120,) in remarking on this opinion says ‘That
from
this observation of Lord Loughborough, it may be collected that in his lordship’s opinion, it is not only necessary that the trustee be under an obligation to purchase land, but that he be apprised of such obligation, and that nothing appears to rebut the presumption of his intention to discharge it.’
In investigating the fact of the purchase of these lands by James M. Broom the trustee, with the trust money, and for the purposes of the trust, the first remark upon the evidence, suggested by the principle of the cases referred to, is, that he was under no obligation to invest this trust money in the purchase of land; and that he was perfectly competent from other sources, to buy these lands for his own use. The will.of Jacob Broom so far from directing the proceeds of his property to be invested in real estate, orders all his real estate to be converted into money, to create a fund to be applied and distributed according to the directions of his will: and that part of this fund bequeathed to complainants, is directed to be paid ‘to trustees
to
hold’ for the use of complainants in specified proportions ‘the proceeds thereof to be paid to them’ as directed by the said will. And that it was so
held
by James M. Broom, without reference to any specific investment in real estate, appears from his administration and trustee accounts charging himself with the money; and from the payment of interest to the legatees which he alledges in the deed of assignment to Lowber, to have been a principal cause of his embarrassment. There is, therefore, from these facts, no ground of presumption that Broom conceived himself to be under an obligation in the execution of his trust, to invest this money in land, nor that in the purchase of this property, his object and intention were to discharge such obligation. And, connected with the fact of the conveyance being taken in his name without any mention of the trust, it is a case where the complainants will be held to
strict proof
of the application of the purchase money.
What is the proof relied on? It consists in the declaration of trust made by J. M. Broom, in the deed of assignment to Lowber. Jacob Broom the testator, died in 1810. From that time until the
date of this assignment in 1826, James M. Broom purchased and held a large real estate in Pennsylvania, Delaware, Maryland and Ohio, far exceeding the amount of money due from him to the complainants. The conveyances were all made to him personally without any mention of a trust; and he occupied, improved, sold, mortgaged and otherwise charged them with his own responsibilities as his own property. He held himself out to the world as the proprietor; and upon the general security of these lands he obtained credit. At the same time, he treated his liability to complainants as a
debt
due from him to them
personally,
not charged upon or invested in any particular portion of his estate. In his trustee account he charged himself with money; he received the rents and profits of the lands as his own, and, though these were inadequate, as he alledges, to keep down the interest of the sum due the legatees under his father’s will, he still considered himself liable to the amount of that interest. Under these circumstances, being embarrassed by this debt and by judgments and mortgages standing against him at the suit of respondents, he executed a deed in 1826, to John Lowber, conveying him all his land in Delaware, Maryland, Ohio or elsewhere, except in Pennsylvania, in trust to pay off these legacies to such of the legatees as should execute a release. The recital to this deed contains the declaration of trust upon which it is designed to establish that these lands were bought with the trust money in execution of the trust, and that the equitable title thereto, had always been in the
cestuis que trust
and not in Broom. This deed recites that certain sums of money had come to the hands of J. M. Broom as executor and trustee under the will of his father ‘which have not been paid over to the persons entitled to the same
or invested in any separate and distinct investment by him as trustee;
but that the said J. M. Broom with the said moneys, hath purchased sundry par-eels of real estate, intending that the same should be holden for the use and security of the persons so entitled to the said moneys. ’ This declaration, if disconnected from the facts in the cause could not be considered as very unequivocal: it sets out with the distinct avowal that the money had not been invested in any separate and distinct investment by him as trustee. But considered in connection with the evidence it amounts to nothing more than this, that Mr. Broom being indebted to certain legatees, holding in his hands a fund which he was directed by the will of his father to hold and to pay over the proceeds to the legatees, made frequent purchases of lands and real estate without any reference to his trust, but which he regarded with all the rest of his property, as a
security
for the debt due to these legatees. The idea of an investment of their money in real estate for their
use
so as to give them a title to the land is totally inconsistent with all his conduct in relation to the land that he purchased and held. The expensive improvements of Tusculum made by Mr. Broom, and his mortgage of the Hazlitt farm to Mrs. Delaplaine, conclusively show that this idea of their being trust estates, had its origin at a period long subsequent, perhaps at the time when in the deed of assignment to Lowber, he declares, that having become embarrassed by the payment of interest to these legatees, he is desirous of ‘appropriating’ these estates to the payment of their claim.
From this view of the case we cannot say that the investment of this trust money in these lands has been proved either clearly or satisfactorily to us so as to induce us to recognize an equitable lien of these legatees upon the land discharged from the claims of the judgment creditors: and we design to rest our judgment on this ground without deciding several other questions of importance raised in this cause, particularly that which relates to the application of this general doctrine of the equitable lien of cestui que trust as established in England to our own country. In
Bailey
vs.
Greenleaf et al.
(7
Wheat. 57.) Ch. Jus. Marshall
says ‘In the United States the claims of creditors stand on high ground. There is not perhaps a state in the union the laws of which do not make all conveyances not recorded and all secret trusts void as to creditors as well as subsequent purchasers without notice.’ On this occasion, however, we waive a decision of the general question which is unnecessary as the proof does not satisfy us of the investment; and we are all of opinion that the decree of the Court of Chancery ought to be affirmed.
(Note.) It was contended in the argument that the decree was erroneous, so far as regarded the proceeds of sale of the house in Wilmington, bought by Mr. Wales, because it was sold as the property of Jacob Broom, and was never the property of J. M. Broom either as trustee or otherwise. The same objection was made in relation to two tracts sold to the Morrissons, one for $155: and the other for $425: and also a piece of marsh sold to J. Wales for $200. It was also contended that the decree could not embrace the whole proceeds of the Bohemia Manor farm, as a part thereof, about forty acres, is in Maryland, and not bound by these judgments. The same objection was made to the decree so far as it applies the proceeds of the Logue farm to these judgments. This farm lies altogether in Maryland, and sold for $305. The only evidence in the cause in relation to the lot bought by J. Morrison, and the tract bought by T. Morrison is furnished by the complainant’s bill which sets forth these tracts as a part, of the land bought by James M. Broom with 1 he trust funds. There is therefore no reason for excepting these particular tracts from the operation of the decree. The proceeds of the sales of the other property, exclusive of the house in Wilmington sold to Mr. Wales, and also exclusive of the Logue farm in Maryland, and of that part of the Bohemia Manor farm that lies in Maryland, are amply sufficient to cover the amount ordered by the decree
to be
paid to the judgment creditors, and leave a large sum unappropriated. Without inquiring then whether the creditors are entitled to the proceeds of this property, there being a sufficient fund for the payment of their claims without it, the decree must stand.
The sales of the property were as follows:
The Clement’s creek marsh sold to Mr. Wales for $200
“ Stable lot to J. Morrisson for 155
“ Grave yard lot to Lowber for 100
“ Woodland on Kennet road to J. Martin for 650
“ Holland’s creek marsh to J. Morrison for 425
The Oldham farm on the manor, 450 a., (40 a. in Maryland,) sold to Smith for $1900; deduct $200 for the
40 a. in Maryland 1700
J. A. Bayard
and
Rogers
for appellants.
Latimer, Wales
and
Reed, Jr.
for judg’t. creditors.
Tusculum sold by the shff. to Doet. Martin for $5700; and the Hazlitt farm sold to Higgins for $3035;— •
These tracts were sold on Tatnall’s judgment, and Delaplaine’s mortgage, and the sheriff paid into Court (after deducting these claims, as I suppose) this balance 5030
House in Wilmington sold to Wales, which complainants contend is not bound by the judgments vs. J.
M. Broom 3250
Logue farm, in Maryland, sold to Wales for 305
$11,815
Sums ordered to be paid by the Decree:
Bank of Delaware $1824 58
Executors of Jeffries 1196 94
Administrators of Monro 929 22
Bank of Wilmington and Brandywine 769 71
- 4,720 45
Surplus of sales $7,094 55
Or $3,539 55, exclusive of the house in Wilmington; the Logue farm and part of the Bohemia Manor farm.
Decree affirmed with costs.