By the Court,
Downer, J.
The only evidence of a partner; ship between John White and Garret M. Eitzgerald is the writing set out in the complaint. By this it appears that four different purchases of land were made, the title to which was taken in the name of Fitzgerald; in three of the purchases White was interested as half owner, in the other as owning one third. We think it insufficient to establish a partnership in the purchase and sale of real estate. We rather infer from it that at each purchase of land there was an agreement what interest each should have therein. Yiewing it solely in relation to the land described in the complaint, it is equivalent to a declaration in writing, signed by Fitzgerald, that he and White owned this land jointly, each owning an undivided one half thereof; that White had paid the purchase money, or about fifteen sixteenths thereof, and that the conveyance of the legal title was made to Fitzgerald. This is the same in legal effect as though Fitzgerald in the instrument had said that he held the legal title to one half of the land, and the same was conveyed to him for the benefit of or in trust for White. It is a declaration of trust. Is it sufficient to convey to or give White a legal or an equitable interest in the land ? For aught that appears the title to this land was taken in the name of Fitzgerald with the consent of White. There can be no resulting trust in favor of the latter. R. S., ch. 84, sec. 7. If there was a resulting trust, White would be entitled to an interest in the land equal to the share of the purchase money he paid. But the written instrument states that the land is owned jointly by White and Fitzgerald; that is, each owns one half. The instrument is not void by reason of the provisions of sec. 6, chap. 106, R. S. That section requires that the trust should be created or declared by deed or con[486] veyance in writing subscribed by tbe party creating or declaring the trust. It prescribes no particular form by which the trust may be declared or created. The instrument may even be without a seal, witnesses or acknowledgment, and yet be a conveyance, within the meaning of the term “ conveyance ” as defined by sec. 7, ch. 108, R. S.
But the more difficult question arises under chapter 84, “ Of Uses and Trusts.” Uses and trusts, except as authorized by that chapter, are abolished. Section three provides that “Every person who, by virtue of any grant, assignment, or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.” And section five further provides that conveyances shall be made directly to the person in whom the right to the possession and the profits shall be intended to‘be vested, and if made to one person for the use of another, except as otherwise provided in that chapter, no estate or interest, legal or equitable, shall vest in the trustee.
Thus what are called passive trusts are converted into legal estates vested in the cestui que trusts. The trust we are considering is a passive trust. 'If Upham had conveyed the land to Eitzgerald, expressing on the face of the deed that he was to hold one half of it in trust for White, the latter would have taken the legal title to one half of the land. If Eitz-gerald, at the same time he received the deed from Upham, had executed under his hand and seal, duly witnessed and acknowledged, so that it could be recorded, an instrument in writing in and by which he declared that the conveyance by Upham to him of the. land in question was, as to one half thereof, made in trust for the use of White, it would have had the same effect as a transfer of the legal title to White, as if the declaration of trust had been in the deed from Upham. [487] These deeds made at the same time might have been construed each as part of one and the same transaction. Can it make any difference that a few days or even weeks elapsed between tbe execution of the first deed and the declaration of trust? It appears to us not, unless Fitzgerald had in the mean time transferred the land to innocent bona fide purchasers.
But the instrument we are considering is not under seal, has no witnesses, and is not acknowledged, and could not be recorded. Can such an imperfect instrument as this, taken in connection with the deed of Upham to Fitzgerald, vest the legal title to the land in White ? If not, can it be regarded as a contract for a conveyance ? It is a familiar principle, that if A gives to B a written instrument under his hand in form conveying land, but it is defective as a conveyance for the want of a certificate of acknowledgment, seal or other formality, a court of equity will treat it as an agreement to convey, and decree a conveyance. Here is an instrument which, if under seal, witnessed, and acknowledged, might have vested in White the legal title to the land. Why should it not be treated as an agreement to execute a declaration of trust in due form of law ?
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By the Court,
Downer, J.
The only evidence of a partner; ship between John White and Garret M. Eitzgerald is the writing set out in the complaint. By this it appears that four different purchases of land were made, the title to which was taken in the name of Fitzgerald; in three of the purchases White was interested as half owner, in the other as owning one third. We think it insufficient to establish a partnership in the purchase and sale of real estate. We rather infer from it that at each purchase of land there was an agreement what interest each should have therein. Yiewing it solely in relation to the land described in the complaint, it is equivalent to a declaration in writing, signed by Fitzgerald, that he and White owned this land jointly, each owning an undivided one half thereof; that White had paid the purchase money, or about fifteen sixteenths thereof, and that the conveyance of the legal title was made to Fitzgerald. This is the same in legal effect as though Fitzgerald in the instrument had said that he held the legal title to one half of the land, and the same was conveyed to him for the benefit of or in trust for White. It is a declaration of trust. Is it sufficient to convey to or give White a legal or an equitable interest in the land ? For aught that appears the title to this land was taken in the name of Fitzgerald with the consent of White. There can be no resulting trust in favor of the latter. R. S., ch. 84, sec. 7. If there was a resulting trust, White would be entitled to an interest in the land equal to the share of the purchase money he paid. But the written instrument states that the land is owned jointly by White and Fitzgerald; that is, each owns one half. The instrument is not void by reason of the provisions of sec. 6, chap. 106, R. S. That section requires that the trust should be created or declared by deed or con[486] veyance in writing subscribed by tbe party creating or declaring the trust. It prescribes no particular form by which the trust may be declared or created. The instrument may even be without a seal, witnesses or acknowledgment, and yet be a conveyance, within the meaning of the term “ conveyance ” as defined by sec. 7, ch. 108, R. S.
But the more difficult question arises under chapter 84, “ Of Uses and Trusts.” Uses and trusts, except as authorized by that chapter, are abolished. Section three provides that “Every person who, by virtue of any grant, assignment, or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.” And section five further provides that conveyances shall be made directly to the person in whom the right to the possession and the profits shall be intended to‘be vested, and if made to one person for the use of another, except as otherwise provided in that chapter, no estate or interest, legal or equitable, shall vest in the trustee.
Thus what are called passive trusts are converted into legal estates vested in the cestui que trusts. The trust we are considering is a passive trust. 'If Upham had conveyed the land to Eitzgerald, expressing on the face of the deed that he was to hold one half of it in trust for White, the latter would have taken the legal title to one half of the land. If Eitz-gerald, at the same time he received the deed from Upham, had executed under his hand and seal, duly witnessed and acknowledged, so that it could be recorded, an instrument in writing in and by which he declared that the conveyance by Upham to him of the. land in question was, as to one half thereof, made in trust for the use of White, it would have had the same effect as a transfer of the legal title to White, as if the declaration of trust had been in the deed from Upham. [487] These deeds made at the same time might have been construed each as part of one and the same transaction. Can it make any difference that a few days or even weeks elapsed between tbe execution of the first deed and the declaration of trust? It appears to us not, unless Fitzgerald had in the mean time transferred the land to innocent bona fide purchasers.
But the instrument we are considering is not under seal, has no witnesses, and is not acknowledged, and could not be recorded. Can such an imperfect instrument as this, taken in connection with the deed of Upham to Fitzgerald, vest the legal title to the land in White ? If not, can it be regarded as a contract for a conveyance ? It is a familiar principle, that if A gives to B a written instrument under his hand in form conveying land, but it is defective as a conveyance for the want of a certificate of acknowledgment, seal or other formality, a court of equity will treat it as an agreement to convey, and decree a conveyance. Here is an instrument which, if under seal, witnessed, and acknowledged, might have vested in White the legal title to the land. Why should it not be treated as an agreement to execute a declaration of trust in due form of law ?
If it cannot be enforced as such an agreement, is it within the provisions of section eleven of said chapter ? That section provides that express trusts may be created for the purposes therein mentioned. It then enumerates four classes of express trusts, being the same as those in the New York revised statutes, and which are usually called active trusts; then follows the fifth subdivision, which is not found in the New York statutes (from which chapter 84 is copied), and first appeared in this state in the Revised Statutes of 1849. It authorizes express trusts to be created “ for the beneficial interest of any person or persons, where such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title.” We know of no judicial decision giving a con-[488] straction to this fifth subdivision. It appears to ns to be broad enough to include such trusts, passive and active, as are not otherwise provided for or prohibited, whenever they are fully expressed and clearly defined upon the face of the instrument creating them. We see no reason why any written instrument that was sufficient as a declaration of trust before chapter 84 was incorporated into our laws, and which is not affected by the limitations as to time, is not sufficient now; or at least so far valid that the cestui que trust will be protected. In cases not otherwise provided for he has a right to the aid of a court of equity as formerly. Most passive trusts are however carried into effect as legal estates by virtue of the statute; and other trusts are valid as powers. There can be no doubt that the instrument in question, but for this chapter, would be regarded as a good and valid declaration of trust. Fisher v. Fields, 10 Johns., 495 ; 2 Washb. on Real Prop., 190 et seq., and authorities there cited. We hold, therefore, that Fitzgerald held the title to one half of the land in trust for White, and that his heirs should be adjudged to convey to the plaintiff below as administratrix of John White, deceased, for the benefit of his heirs or creditors, an undivided one-half of the tract of land conveyed by Upham to said Garrett M. Fitzgerald in his life-time; and that a judgment should be entered barring the other defendants from all interest in the land so conveyed.
As to the claim of the plaintiff below to recover such portion of the purchase money over one half as John White advanced for the purchase of the property, as a personal demand against the administrator (it not having been passed upon by or presented to the commissioners appointed to hear and examine claims against the estate of Fitzgerald), it is barred. Whether there ever was a lien on Fitzgerald’s part of the land for this money, and if there was, whether it could be enforced without the claim being presented to and allowed by the commissioners or county judge, are questions which have not been [489] argued by counsel, and wbicb we do not pass upon, but leave tbe plaintiff tbe right to raise them in the court below if she deems best.
The judgment of the circuit court is reversed, with costs, and cause remanded for further proceedings.
Cole, J., dissents.