People's Bank of Baltimore v. Brooke. even fairly, implies, by its terms, that there has been a due d. The ment and dishonor at the maturity of the note. statute "But mere notice of the fact, that the note has not been costs. affords no proof whatsoever that it has been presented at all, to may be that the holder means to rely upon some legal excuse non-presentment." Graham v. Sangston, 1 Md. 68; Story on Pro Notes, § 350. In the case where the note is in terms payable at a bank, as is the one now in question, it is sufficient if the note is in bank at maturity, ready to be delivered on payment, should the maker come to pay it. Graham v. Sangston, 1 Md. 68. "The court will lay hold of any expression in the notice which might fairly be presumed to indicate that a due presentment or dishonor had taken place, and that the notice was designed to put that fact as the ground of the liability." Story on Pro. Notes, § 352. Giving the most liberal interpretation to the notarial protest, in this case allowable, under the commercial law, regarding the relative rights of the holder and indorser of the note, and assuming that all the statements of the protest have full effect, and the supposed interlineation referred to in the second exception was not made, and whether there was an interlineation or not we do not consider material in this case, it is not shown by the protest that the presentment of this note was made at the bank for payment at its maturity, or that the note was left at the bank for payment. It is merely stated that the note was presented, and it is very possible that this may have been at the bank, but this is mere conjecture, and does not amount to proof. It does not appear where it was presented for payment, but it could not have been to the makers, because the protest states that notice was sent to them at Upper Marlborough. No legal inference can be deduced from the statements of the notarial protest that there was a due presentment of the note for payment at the bank, where, by its terms, it was to be presented, and the court below committed no error in regarding it as totally. insufficient, and instructing the jury accordingly. Judgment affirmed. Green v. Drummond. GREEN, appellant, v. DRUMMOND et al. (31 Md. 71.) Statute of frauds. Resulting trusts.* An agreement, whereby G. and D. agree to become jointly purchasers of certain real estate, each party to furnish one-half the purchase money, and to hold the same in undivided moieties, is within the fourth section of the statute of frauds, and if not evidenced by some memorandum in writing, signed by the party to be charged, will not be enforced. Where in pursuance of such an agreement, a purchase was made in the name of Dalone, although G. advanced a portion of the purchase money, a conventional trust that could be enforced was not created, the same being within the provisions of the seventh section. There being no deed or conveyance of the legal title to D., while the contract of purchase remained executory, no resulting trust within the meaning of the eighth section of the statute could arise in favor of G. But the court of equity may, in cases where the party is not entitled to specific performance, grant relief by decreeing the repayment of the money expended on the faith of the contract. APPEAL from the superior court of Baltimore city, sitting in equity. It appears from the bill of the appellant, that one Silver and others, executors, etc., sold by auction to Kimberly Bros. certain real estate for the sum of $16,000; that the said Kimberly Bros. agreed to relinquish their rights in favor of Levin J. Drummond, since deceased, appellees' testator, whereupon Cornelius Green, the appellant, and the deceased, agreed to become purchasers, each party to furnish one-half the purchase money, and to hold the property in undivided moieties. The agreement was a verbal one, and not evidenced by any writing. The deceased was unable to furnish immediately his portion of the money required by the terms of sale, and the executors, in consideration that $10,000 should be paid within a short time, and the balance in twelve months, agreed that deceased should be substituted as purchaser, to which Kimberly Bros. consented. The $10,000 was paid $6,000 by appellant and $4,000 by deceased. The sale was reported by the executors, as made to deceased, who was named as purchaser. There has been no legislative re-enactment of the statute of frauds in Maryland, and the provisions of the English law (29 Car. II. cap. 3) are still in force. Sibley v. Williams, 3 Gill and Johnson, 62. See also Maryland Constitution, § 5, which, though adopted since the above action was commenced, is merely declaratory of the previously existing law.—REP. Green v. Drummond. All these facts seem to have been substantially proved. The →ppellees relied upon, and pleaded, among other things, the statute f frauds. The bill was dismissed, in the court below, with costs. Wm. Pinkney Whyte and Wm. Mead Addison, for appellant. BARTOL, C. J., delivered the opinion of the court. There can be no doubt that the alleged agreement between Green, the appellant, and Levin J. Drummond, as set out in the bill of complaint, was an agreement within the fourth section of the statute of frauds. The allegation in the bill is, "that Green and Drummond agreed to become jointly the purchasers of the property, each party to furnish one-half of the purchase money, and to hold the same in undivided moieties." The purchase was made in the name of Drummond alone, who was reported by the executors as the sole purchaser, and the sale was ratified as made to him, Green being no party to the contract made with the executors, nor in any manner known to them as purchaser; his alleged agreement was made with Drummond, and, as stated in the bill, was a mere parol agreement, not evidenced by any writing. This brings the case precisely within the ruling of this court in Hollida v. Shoop, 4 Md. 465; and within the case of Parker v. Bodley, 4 Bibb, 102, which was cited and adopted in Hollida v. Shoop, 4 Md. 474. It is unnecessary to refer to other authorities in support of the position that contracts to purchase land, are within the fourth section of the statute, and can be evidenced only by some note or memorandum in writing, signed by the party to be charged therewith. If the case of the appellant rested only upon the alleged agreement, he must fail in maintaining his bill upon parol evidence merely. But it has been contended that, upon the pleadings and proof, there was a trust created in favor of the appellant; the effect of the agreement being, as alleged, to charge Drummond, as trustee of the appellant, to the extent of one moiety of the land. Here we are met by the provisions of the seventh section of the statute, which declares that "all declarations or creations of trusts, or confidences of any lands, etc., shall be manifested and proved by some writing, etc., or else they shall be utterly void and of none effect." Green v. Drummond. Under this section it is not competent to prove by parol an express or conventional trust. As decided in Dorsey v. Clarke, 4 H. & J. 556, "if a party who buys land agrees by parol to hold it for another, or to give that other the benefit of the purchase upon the payment by him of the purchase-money, such a conventional trust could not be enforced. It would be within the statute, and could be evidenced only by writing." Is this a case of a constructive or resulting trust within the saving of the eighth section of the statute? Upon this question we have had more difficulty in arriving at a satisfactory conclusion. It is very clearly established by the evidence, that, at the time the arrangement was concluded with the executors, under which Drummond was accepted by them as the purchaser, and $10,000 of the purchase-money was paid, a considerable part of the money so paid was furnished by Green, the complainant; not as a loan to Drummond to be repaid, but as part of the purchasemoney, with the intention of securing to Green an interest in the property as part owner. It has been argued that the effect of this transaction was to create a resulting trust in the property in favor of Green, to the extent or in the proportion of the money so paid or furnished by him, thus bringing the case within the provisions of the eighth section of the statute; it being well settled that such constructive or resulting trusts, arising by operation of law, may be proved by parol evidence. The language of the eighth section is as follows: Provided always, that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise, or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made, any thing herein before contained to the contrary notwithstanding." One of the classes of trusts coming within the purview of this section is thus defined: "Where, upon a purchase of property, the conveyance of the legal estate is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a presumptive or resulting trust immediately arises by virtue of the transaction, and the person named in the conveyance will be a trus Green v. Drummond.' tee for the party from whom the consideration proceeds." Hill on Trustees, 92, m. "In such case the payment of the consideration money may be proved by parol, as before the statute. The payment of the money is the foundation of the trust." 4 H. & J. 556. We consider it well settled, upon reason and authority, that, if a part of the purchase-money be so paid, there will arise in the same manner a resulting trust pro tanto in favor of the party so paying. But the question here presented is, whether a trust of this kind can arise upon an executory contract merely; or where there has been no conveyance of the legal title. The judge of the superior court decided that, there being no deed or conveyance of the legal title from the executors to Drummond, resulting trust could not arise under the eighth section of the statute. A very full and careful examination of the authorities has convinced us that the decision of the judge below on this question is correct. The words of the statute seem plainly to apply only to cases where “a a conveyance shall be made of lands." Trusts of this description "must arise, if at all, at the time of the execution of the conveyance." In all cases there must be a mutation of the legal title, and the trust arises by operation of law "from contemporaneous circumstances, giving a different direction to the equitable title from that taken by the legal title." In support of these positions the following authorities may be cited: 3 Sug. on Vendors, 174, note 1; Lewin on Trusts, ch. 8, p. 176; Dyer v. Dyer, 2 Cox, 92; Jackson v. Morse, 16 Johns. 199; Murray v. Rogers, 3 Paige, 398; Page v. Page, 8 N. H. 187; Baker v. Vining, 30 Maine, 121; Dorsey v. Clarke, 4 H. & J. 551. The contract of purchase by Drummond from the executors, and the ratification of the sale by the orphans' court, gave him only an equitable interest in the land; to convey the legal estate a deed from the executors is necessary; and until the whole purchase-money is paid they are not bound to execute a deed. While the contract of purchase remained executory, and before the conveyance of the legal estate to Drummond, no resulting trust within the meaning of the eighth section of the statute could arise or be created in favor of Green. The case of Cecil Bank v. Snively, 23 Md. 253, has been cited, and relied on by the appellant in support of the position, that such a trust may arise upon an executory contract of sale, without a conveyance. VOL. I.-3 |