Under the old system, if A bought property for B, but in his own name, A had the legal title; but he held it in trust for B, and equity would compel a conveyance, upon B’s doing whatever equity required of him. The principles are the same under the new system ; but the remedies are all embraced in one action. So that, if it be true as alleged by the *515plaintiff, that the defendant bought the property for the plaintiff, but in his own name, it would not vest the title in the plaintiff, but in the defendant, subject to be divested upon the plaintiff’s doing whatever equity might require him to do. If that were not so, see what might be the hardship upon the defendant. The plaintiff’s property is about to be sold by the sheriff' for debt. The defendant says to- plaintiff, “ I owe you $100, and I would be very glad to befriend you.” “Yery well,” says the plaintiff, “ buy the property, and we will make it all right on a settlement.” The defendant buys the property and pays $500 fur it, in his own name. Now, under the old system, the defendant would have the legal title, and the plaintiff would have an equity to call fur the legal title upon his paying to the defendant $400. Can it be that it is reversed under the new system, and that the title instantly vests in the plaintiff, and the defendant is driven to. his action for reim bursement of his $400 ? There is no such change; but the rule is the same as heretofore.
We do not agree with his Honor that the transaction testified to by the plaintiff constituted the defendant the agent of the plaintiff to buy the property for him, and that the title vested immediately in him. On the contrary, we are of the opinion that the proper construction is that the defendant was to buy it for himself, and in his own name, but to be subsequently transferred to the plaintiff upon an adjustment of their accounts.
Our conclusion is that the plaintiff is not entitled to recover the property until he accounts with the defendant. If there is nothing due the defendant, then the plaintiff is entitled to recover the property. If there is anythiug due the defendant then the plaintiff will be entitled to recover the property upon his paying what is due. The equitable as well as the legal rights of the parties being administered in this action.
When the terms of a contract are ascertained, its construction is for the Court. When not ascertained, it has to be left to the jury with instructions. It is not necessary for us to *516decide whether the terms were so ascertained as that his Honor could construe it, or whether he ought to have left it to the jury; because if we take the contract to be in the very words of the plaintiff, we think his Honor misconstrued it, and we should have to give a new trial; and if he ought to have left it to the jury, but did not, the result must be the same.
PeR CuRiAH. Venire de novo.