Sayre vs. Townsends, 15 Wend. 647

By the Court, Bronson, J. In the late revision of the laws, resulting trusts were in most cases abolished. 1 R. S. 728, §51, 53. At the time, however, when the deed in this case was executed, if the Townsends had paid the whole consideration, and the intention between them and Ketchum was that the grant should enure to their benefit, there can be no doubt that a trust would have resulted in their favor. Whether such an interest can be set up at law as a defence in the action of ejectment, need not now be considered.

Conceding the general doctrine on which the cause was mainly placed by the circuit judge, there was still, I think, an insuperable ¿üfgcu]ty jn the way of the defence. There was no pretence that the Townsends had paid any thing beyond the two Per acre, or $47, mentioned in the surveyor general’s deed. This was but a part, and that not an aliquot part of the consideration for the grant. Ketchum had an interest in the land anterior to, and independent of the deed.

He had settled on, and improved a part of the land ; he was one of the petitioners for the favor or bounty of the legislature; and the act passed on that occasion had secured to him a grant of the lands he had improved, and other vacant lands, not exceeding 400 acres in all, at a consideration little more than nominal. The 100 acre lot was a part of what was called his surplus right. That the grants authorized by this statute were intended as a partial gratuity, or special favour to the petitioners, cannot be doubted.

The act did not provide in general terms for a sale of the land; but for grants to particular individuals. That this provision was beneficial to the applicants must be evident, from the consideration that they asked it as a favor from the legislature. Afid it is further established by the fact that commissioners were to be appointed to adjust disputes which might arise between the petitioners respecting the extent of their possessions or improvements. This would have been a useless provision, if the act had not conferred important advantages on the persons named in it.

It is impossible to say what proportion the 25 cents per acre paid into the treasury by the Townsends bore to the privilege conferred on Ketchum by the statute. But the money was no more the property of the one than the privilege was the right of the other. Both taken together, formed the consideration of the grant. Crop v. Norton, 2 Atk. 74. It may well be doubted whether any trust whatever, or to any extent, resulted to those who paid the money into the state treasury.

If it was paid with the assent of Ketchum, the Townsends should probably be regarded as creditors for the amount, rather than as having acquired any interest in the land. A trust will not result to one who pays a part only of the consideration on the purchase of land conveyed to another, unless it be some definite part of the whole consideration, as one third, one half, or the like. White v. Carpenter, 2 Paige, 238, 241.

And if an aliquot part or the whole consideration had been paid by the Townsends, it is questionable whether the equitable interest which they thus acquired could be set up at law as a defence against the legal title. Jackson v. Van Slyck, 8 Johns. R. 487. But that question does not arise in this case. The judge charged the jury, in substance, that if the Townsends paid the $47 to the state with the assent of Ketchum, a resulting trust was created, and the land became theirs notwithstanding the deed was given • to another. In this I think he erred.

As the plaintiff is entitled to a new trial on this ground, it is unnecessary to consider the other questions discussed by his counsel on the argument. The counsel for the defendants urged several considerations in favor of sustaining the verdict in case the court should be against them on the question which has been examined. It was said that the plaintiff was barred by an adverse possession in the defendants and those under whom they hold.

It is a sufficient answer to this suggestion, that when the plaintiff was proceeding with his proofs to rebut the evidence of an adverse holding on the part of the defendants, the judge interfered and informed the counsel that such proofs would be useless, for there could be no question of adverse possession raised, as the case then stood. “ Whereupon the counsel for the plaintiff stopped the inquiry.” It was also urged, that the deed of the surveyor general had ■ never been delivered to Ketchum.

There was certainly some difficulty in the plaintiff’s case, in relation to the delivery of the deed; and if the judge, in his charge, had placed the cause upon this single ground, it may be that a verdict for the defendants would not have been disturbed. But where, as in this instance, the case is submitted to the jury to find their verdict for one party upon either of two distinct grounds, and the instruction upon one of the questions is erroneous in point of law, the verdict cannot be sustained.

If the jury had been further instructed, in the event of finding for the defendants, to say on which ground the verdict rested, and they had answered that there was no delivery of the deed, the court would have been relieved from the necessity of examining the other question. But for aught that appears, the verdict in this case may have proceeded on the untenable ground that there was a resulting trust, and such an one as would defeat the legal title. It was said also, that under the circumstances of this case a conveyance from Ketchum to the Townsends might be presumed.

There is no doubt that an equitable title may sometimes be assisted at law, by allowing the presumption that there has been a conveyance of the legal estate; but it does - not appear that any such question was raised on the trial. On the contrary, the cause was submitted to the jury on other grounds. New trial granted.