John W. Hollida vs. Adam Shoop and others, 4 Md. 465

Le Grand, C. J., delivered the opinion of this court. The object of the bill- in this case is to quiet the title of the' appellant, and to restrain the execution of certain judgments-obtained against William Grove. It substantially alleges, that the complainant and Grove, in the year 1836, entered into an arrangement jointly to purchase of a certain Michael A.

Finley, executor of Samuel Lynch, deceased, certain real estate; that Grove residing in the neighborhood of the lands intended to be purchased, the negotiations and transactions relating to the purchase were confided to him; and that the' contracts were made with Grove, the complainant being understood to be jointly interested in the same.

The bill further avers, that Grove subsequently proving incapable and insufficient to advance his share of the purchase money, the' same was paid by complainant, and that on the 6th day of October 1846, Finley, the executor of Lynch, and Grove and wife, executed and delivered to him a deed in fee for the land purchased of Finley. It is also averred, that the defendants, having judgments against Grove, have caused executions to issue thereon, and to be levied on the land purchased of Finley and conveyed by him, Grove and wife, to complainant.

The prayer of the bill is, that the sale of the land may be restrained and title of complainant decreed to be good and-quieted, and for general relief. The defendants severally answered the bill. The answer ofEnswinger, which, so far as its averments and denials are concerned, is adopted by the defendant Dillinger, denies that the complainant and Grove purchased the land jointly, and insists that Grove was bound to pay the whole of the purchase money. It denies that the whole purchase money, or the pretended share of Grove, was advanced by complainant.

The answer also further avers, that Grove purchased of Finley, in two purchases made in 1836 and 1840, four hundred and fifty acres of land, for the sum of $9027, and that in the year 1842, Grove sold to Stephen Butterbaugh two hundred acres of said land, for the sum of $6000; that Grove not having the legal title to the land, Finley joined with Grove and wife in the deed to Butterbaugh. It is also stated that the $6000, the consideration in Butterbaugh’s deed, were paid to Finley on account of the entire purchase of the four hundred and fifty acres.

Adam Shoop and Israel Knodle disclaim all interest in the proceeding, alleging that they have assigned their judgments to persons at whose instance executions have issued. The proceedings show that the sales were made by Finley to Grove, and reported to and conSrmed by the orphans court as sales made to Grove; and also that Grove gave his single hills for a part of the purchase money, on which suits were brought in Washington county court, and for which four several judgments were obtained. To sustain the case made by the bill William Grove was examined.

He testified in substance, that the purchases were made in his own name, and that complainant was not named in the transaction, but that it was agreed between them the complainant should furnish the money, which he did. The depositions of Grove assigns various reasons why the transaction was conducted in his name without reference to complainant, the principal of which is that he lived near the land, whilst the complainant resided in Virginia.

On this state of case we are of opinion the complainant is not entitled to the relief he asks, except as to the judgment of Enswinger, which is subsequent in its rendition to the date of the deed of Finley, and Grove and wife, to Hollida. We do not deem it important to inquire whether the testimony of Grove is supported by the circumstances attending the sales made by Finley, and ratified by the orphans court of Washington- county, as made to Grove alone.

It is clear from the evidence, that the $6000 paid by Butterbaugh for a portion of the land were paid to Finley, in part payment of the original purchase money; and also that Grove gave his obligations for a portion of the latter, and that judgments against him were recovered on these single bills. It is also equally incontestible that he publicly dealt with the land as though he alone was the owner. These facts militate against the theory of the case of the complainant as set up in his bill.

But even were it conceded, ex gratia argumenti, that the testimony of Grove fully and completely sustained the bill, still the inquiry would be, is the complainant on such a case entitled to the relief he asks? And we think he is not. On the payment of the purchase money Grove would have been entitled to a deed from Finley.

This right could not have been-defeated by Hollida, except on the ground that the land was purchased for him and that he paid the purchase money, and to establish these facts the testimony must be of the clearest and most indisputable- character; for, in its nature, it is an effort to establish by parol a resulting trust. Faringer vs. Ramsay, 2 Md. Rep., 365. In the case of Parker vs.

Bodley, 4 Bibb, 102, it was held, that an agreement by parol between two persons to purchase land, one of whom was to make the purchase, and each to pay one-half of the price and take one-half of the land, was within the statute of frauds, and no trust results in favor of the party who did not make the purchase, although the statute speaks not of contracts to purchase, but for the sale of land, &c. Now this is precisely the agreement set out in the bill in this case. And if we look to the facts in the case, independently of those .testified to by Grove, the case is equally within th.e statute.

It has been held that if A buy in his own name and upon his own credit, the statute of frauds is applicable; and it cannot be proved by parol evidence that the purchase was for another’s benefit. Fowke vs. Haughtier, 3 Marshall, 57. If Hollida have any right as against the judgment creditors, whose judgments are prior in date to the deed from Finley, Grove and wife, to him, it must arise from the alleged payment by him of the whole purchase money. But, it is beyond dispute, the sale was made to Grove, and on Ms credit, for he gave his obligations for a portion of the purchase money.

Any subsequent advance by Hollida would not be sufficient to create a resulting trust in his favor. To use the language of Chancellor Kent, in the case of Bolsford vs. Burr, 2 Johns. Ch.

Rep., 409, a subsequent advance “might be evidence of a new loan, or be ground of some new agreement, but it would not attach, by relation, a trust to the original purchase; for the trust arises out of the circumstance that the moneys of the real, and not of the nominal purchaser, formed at the time the consideration of that purchase, and became converted into land.” In the same case the learned chancellor remarks, “after a purchase with his own moneys or credit, a subsequent tender, or even reimbursement, may be evidence of some other contract, or the ground of some other relief, but it cannot, by any retrospective effect, produce the trust of which we are speaking.

There never was an instance of such a trust so created, and there never ought to be.” From this it is manifest that the complainant is not entitled to relief as against the judgment creditors prior to the date of his deed. That conveyance could not affect liens which had previously matured; and under our act of Assembly of 1810, ch. 160, equitable interests in lands are bound by judgments against the parly having the equity. The deed could only convey the title, subject to the incumbrance then on the property.

We affirm so much of the decree of the court below as dissolves the injunction, and dismisses the bill of complainant as against the judgment creditors, whose judgments are prior to the 6th October 1846, the date of the deed to Plollida, and reverse it so far as it has reference to judgments rendered since that time. In regard to these latter we perpetuate the injunction. Decree affirmed in part and reversed in part„