(After stating the facts as above.) The defendant contends that the case made by the bill is simply that of an oral declaration of a trust of the legal estate, which is invalid, by reason that the statute of frauds, Rev. Code, ch. 50, sec. 11, avoids all contracts to sell or convey any lands, &c., unless pnt in writing, and signed by the party to be charged therewith. His connsel, in an able and ingenious argument, endeavored to maintain that although the provision which is found in the English statute of frauds, 29 Car. II, c. 3, requiring all declarations of trust to be evidenced in writing, is not found in our statute, yet what is above cited is equivalent to it, and forbids a valid declaration of trust, except it be evidenced by writing.
He admitted that the decision in Shelton v. Shelton, 5 Jon. Eq. 292, was opposed to his view, and argued that that decision was an innovation, opposed to reason and authority. We think the counsel misapprehended the case of Shelton v. Shelton, and also the case of the present plaintiffs. The case in Shelton v. Shelton was, in substance, this: Mrs. Morgan purchased a piece of land, and caused the deed to be *777made to her grandson, Yincent Shelton. By a principle of common application in the English, as well as in our, law, in the absence of any proof to the contrary, a presumptive trust would have arisen in favor of Mrs. Morgan; and after her death, her heirs filed the bill to enforce such a trust against the defendants, who were, the mother of Yincent Shelton and her children. To repel this presumption, and substitute a different trust from the one which the law presumed, the defendants proved oral declarations and acts by Mrs. Morgan, tending to establish a trust for them; and, among other things, a possession by them for many years during her life. Whether or not mere oral declarations by a holder of the legal estate are sufficient to create a trust for the benefit of a stranger, it is clear that no such point was decided in Shelton v. Shelton.
The authorities cited in 1 Spence, Eq. Jur., 495-497, prove that prior to 29 Oar. II. declarations of trusts by words only were theoretically allowable, although we may suppose that such evidence by itself would be rarely deemed sufficient. As late as 28 Oar. II. (1676) Lord Nottingham said, Express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These latter are commonly called presumptive trusts; and that is when the Court upon consideration of all circumstances presumes there was a declaration either by word or writing, although the plain and direct proof thereof be not extant; Cooke v. Fountain, 3 Swanst. 291.
The statute of Charles, passed in the next year, avoided all declarations of trusts not evidenced by writing, but, by section 8, expressly excepted such trusts as are presumed by construction of law, (Spence, ub. sup.) and, under the heads of implied resulting and also constructive trusts, the English Courts have familiarly enforced a vast number of trusts not *778evidenced by writing. A common instance of a resulting trust is that, where one person pays the consideration for land conveyed to another, as in Shelton v. Shelton. But in such a case it is the constant practice of the English Courts to permit the presumption to be repelled, and a trust to be established different from what would be presumed upon that state of facts merely, by proof óf acts and declarations inconsistent with it. It is only in express trusts of real estate that a writing is required; 1 Spence 571; 2 Id. 20; 201 Lewin, Trusts 155; Dyer v. Dyer, 2 Cox 93; Murless v. Franklin, 1 Swanst 13; Sidmouth v. Sidmouth, 2 Beav. 447. In this last case, (which, however, did not relate to real estate) the Master of the Bolls, after stating the general rule, that a purchase by a parent in the name of a child, is an advancement, says, u but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall be only a trustee,” &c. That cotemporaneous acts, and even cotemporaneous declarations of the parent, may amount to such evidence, has often been decided.
In this point of view, the case of Shelton v. Shelton is consistent with the English decisions under their Statute, and of course with our Statute in pari materia, which contains no clause making void declarations of trusts not evidenced by writing.
And in this State it is very far from standing alone, as a reference to the following cases will show: Foy v. Foy, 2 Hay. 131; Gay v. Hunt, 1 Mur. 141; Henderson v. Hoke, 1 D. & B. Eq. 119; Cook v. Redman, 2 Ire. Eq. 623; Clement v. Clement, 1 Jon. Eq. 184; Briggs v. Morris, Id. 193; Taylor v. Taylor, Id. 246; Riggs v. Swann, 6 Jon. Eq. 118; Baker v. Evans, Winst. Eq. 109.
We see no occasion to alter any of the expressions in the *779case under discussion. None of them imply that proof of mere words by the owner of tbe legal estate, will suffice to create a trust; or even that mere words will suffice to repel a presumptive trust, though how this last may be, we are not called upon to say. Indeed, it is hard to conceive of a case which could be founded on words only, without some corroborating acts and circumstances.
How does the case stated in the plaintiff’s bill, stand in connexion with the matters really decided in Shelton’s case ? Allen Eerguson owned certain lands; judgments had been obtained, and executions issued against him by John Eergu-son and one Langston ; these were levied on his land: Allen conveyed the land to John by deed; no money was then paid to Allen; John agreed, by words, to pay off the executions, for half the land, and to hold the other half for Allen ; in pursuance of the agreement, John bid off the land at the execution sale; during the lives of Allen and John, and for several years, they used and possessed the land in common, according to the agreement; the heirs of John now claim the whole.' This is the general case, stated as simply as possible, and with the omission of a great number of circumstances, — such as the mortgage to Earnst, &c., — which are alleged merely as evidence of the material parts of the case. Thus viewed, this bill is certainly not an attempt to creáte a trust by mere words; it states a case of a conveyance without consideration, in which a trust resulted to the grantor. John, being a trustee for Allen, could not better his condition by his purchase at the execution sale. Therefore, evidence of the acts, dealings and declarations of the parties becomes competent, to ascertain the nature and limits of the trust which is to be attached to the legal estate. This is so wherever a trust is presumed by construction of law, and it would seem to be only saying the same thing in another form, to say that it is so in every case where there *780is a transmutation of tbe possession by deed, and, by any means, other than tbe declaration of an express trust in writing, tbe trust becomes disjoined from tbe legal estate.
Tbe decree of tbe Judge below is affirmed; tbe plaintiffs will recover costs.
Per Curiam. . Affirmed.