Daniel Fisher vs. David Leavitt and Roger Leavitt, 6 Vt. 328

The opinion of the court was pronounced by Collameb, Chan. — This is a bill to enforce a trust in Roger Leavitt, resulting from the estate having been purchased by David Leavitt, and paid for with his money, and the conveyance taken to Roger. The allegations in the bill must be proved, as they are fully denied by the answers. The testimony and exhibits spread over a large volume, and need not be particularly collated and commented on.

The court have examined it with much diligence and care, and find it as easily reconciled with the answers as with the allegations in the bill; and they therefore do not find it ptoved that the purchase of the land, or the erections thereon, were paid for with the funds of David Lea-vitt, or made by him in any way but as the agent of Roger, as alleged by -the defendants. The two dollars paid by David to Jones, was no part of the purchase money to Field. It did not so make Field trustee as that David could have compelled him to convey, nor does it appear that Roger, to whom Field conveyed, had any notice thereof.

It fully appears, from the testimony, that Roger furnished all the money to pay Field, and the orator fails to show David ever in any way furnished or replaced it; and the motive with which Roger says he was actuated was laudable, that is, to furnish a shelter for his brother’s family during his imprisonment. It is however insisted that inasmuch as the orator needs the assistance of chancery to collect his debt, if David has made any advancements to erect the buildings, even though done as the agent of Roger, Roger should be holden as the trustee to that amount, and be decreed to pay it over to the orator.

And the orator further insists, that by the answers, it is acknowledged he did advance some four or five hundred dollars for that purpose, which amount the defendants do not prove to have been ever settled or repaid, and that it is not sufficient for the defendants to avoid this merely by their answers stating a subsequent settlement or payment. The defendants insist that their answers are fairly responsive of the charges and interrog,atories in the bill, even ás to this settlement, and therefore to be takpn together.

It does not however become necessary, in this case, to inquire whether this be such subsequent, independent matter in avoidance as has been required to be proved, or whether an answer in chancery,' so long as it is responsive to a bill, must be all received together as true. This may possibly depend on the manner in which the answer comes to be used.

If as matter of evidence in law, it must be taken as a whole, like any other matter of concession; but if it be taken as matter of pleading as between the same parties, in the same case, in chancery, in which it is made, it may be like a plea in bar, at law, which confesses the cause of action and insists on matter in bar. In such case the plaintiff rests on the confession, but this does not excuse the defendant from proving his plea. — 2 John. Cha. R. 91, note. ■ But to afford the orator relief on the ground now asked, would be an entire departure from the scope of this bill. 1st.

This bill is to enforce a resulting trust in certain land and buildings. The orator fails to show this land was purchased with David Leavitt’s funds, therefore, the land was Roger Leavitt’s. Now if David has advanced money as the agent of Roger towards erections on the land, it most clearly creates no resulting trust in the land to David. It merely makes Roger the debtor to David to that amount.

This is not a bill to enforce the orator’s debt against the debtor of David Leavitt; and if it were, it would not probably be sustained without its being charged and proved either that there was fraucj as to David’s creditors in the creation of such a debt to him in the hands of Roger, and further that it was a debt liquidated and certain by judgment of law. — Donevan vs. Finn, 1 Hopkins’ R. 59. 2d. This case is wholly destitute of any substantive charge of fraud.

Now, although such as receive property fraudulently may, in some cases, in chancery be considered trustees to those injured, yet this is not a bill containing any such charge. It purports to present no such case; but only seeks to enforce such a trust as David Leavitt could have himself enforced from Roger, and no such trust is shown to exist.

The circumstances and appearances under which the defendants conducted this business, were unfortunately calculated to lead the orator into a supposition and belief which, even in practical prudence and good faith, produced this application to chancery, and required the explanation given in the answers.— The orator alone ought not to suffer all the expenses to which the imprudence, indiscretion or unfortunate aspect of the defendants’ conduct essentially contributed. Dismissed without cost.