Ross v. Hegeman

The Vice-Chancellor: I think the plea might be well pleaded in form, within the rules of good pleading, as recognised and explained by the chancellor, in Bogardus v. Trinity Church, 4 Paige’s C. R. 178; and if I were as well satisfied of its sufficiency in substance, or its applicability to the case made by the bill, I should, without hesitation, allow it to stand as a bar. But it appears to me, the case made by the bill is not within the statute requiring the trust to be manifested by some note or declaration in writing. A trust may result or be implied from a joint advance of money upon a purchase in the name of one; and whether the money is paid by the party claiming the benefit of being a joint purchaser before or after the completion of the purchase would seem to make no difference, provided the payment is clearly, shown to be on account and in part of the purchase money. Upon the authority of Wray v. Steele, 2 Ves. & B. 388. (and see also Jeremy’s Equity Juris. 86.) I am of opinion, the present is not a case in which the want of an express declaration of trust in writing can be set up in bar to further discovery and relief. At any rate, I am convinced it is the safest course to overrule the plea, with leave to the defendant to raise the objection in his answer: Townsend v. Townsend, 2 Paige’s C. R. 415, and 577. The defendant is to put in a full answer and pay the costs within twenty days.