express trusts, and (b) express trusts declared or manifested in writing.

Express trusts are usually contrasted with implied trusts.

"Implied trusts" is an ambiguous phrase. For instance, Perry on Trusts says:

"Implied trusts are trusts that the courts imply from the words of an instrument, where no express trust is declared, but such words are used that the court infers or implies that it was the purpose or intention of the parties to create a trust." 3

But that definition of implied trusts seems to be only a definition of those express trusts where the express language has to be construed. A trust is genuinely express even though the express language requires interpretation, if the express language, as construed, does state it fully.

4

On the definition of implied trusts Perry followed Lewin, but in a passage that is helpful Maitland fortunately has refused to do so. He said:

"I have said now what I have to say about the creation of trusts by the act of a party. Lewin and other text-writers divide trusts thus created into express and implied. It is difficult to draw the line, for since no formal words are necessary for the creation of a trust, and since whenever the trust is created by the act of the party there almost of necessity will be some words used, even if a deaf-mute created a trust by 'talking on his fingers' there would be words used, the distinction. comes to be one between clear and less clear words, and clearness is a matter of degree. Thus Lewin, under the head of 'Implied Trusts,' treats of cases in which a testator creates a trust by such words as 'I desire,' 'I request,' 'I hope.' No firm line can be drawn - 'I desire' is nearly as strong as 'I trust,' and 'I trust that he will do this' is almost the same as 'Upon trust that he will do this.' I do not therefore think that the distinction is an important one, and very often you will find that the term 'Express Trust' is given to all trusts created by act of a party, i. e., by declaration, while 'Implied Trust' stands for what Lewin calls a trust created by act of the law."5

Perry's definition of implied trusts cannot be accepted, but neither can the phrase "implied trusts" be deemed synonymous

3 I Perry on Trusts, 6 ed., § 25.

4 I Lewin on Trusts, Flint's ed., 108, 130.

Maitland, Equity and the Forms of Action, 75–76.

with "trusts created by act of the law," nor be deemed properly to embrace such trusts. To imply is to infer, and to infer is to deduce as a fact something as preëxisting. In the absence of evidence of an express trust, to infer from the conduct of the parties that a trust in fact exists is of course to imply a trust, and, as we shall see later, genuine resulting trusts are such inferred-asa-fact or implied trusts. But where a trust is not inferred but is created, by act of the law administered by chancery, to prevent or to rectify the fraudulent enrichment of a wrongdoer, as every so-called constructive trust is, it is an imposed or fiat trust and is not an implied trust. It is only because constructive trusts are misnamed "constructive" that they have been called implied; and now that this is apparent it is desirable to reject the customary definition of implied trusts and to limit the words "implied trusts" to trusts implied in fact, i. e., to resulting trusts.

II.

Resulting or Implied-in-Fact Trusts.

6

In order to understand resulting trusts one must recall the law of resulting uses prior to the Statute of Uses. Before that statute there were three kinds of uses called resulting:

(1) The typical resulting use was the one held to exist where A., a fee-simple owner, made a feoffment to B. and his heirs; but B. gave no consideration, and A. declared no use in favor of B. or of any one else.

(2) Another kind of resulting use was that which existed where A. paid the purchase money for a conveyance of land by B. and

In the phrase "constructive trust" the word "constructive" literally means ascertained by construction; but no constructive trust is really ascertained by construction, even where the intention of the parties is considered by the court in reaching the conclusion that there is unjust enrichment. Then, too, the word "trust" literally means that trust or confidence actually was reposed by the cestui in the trustee (see I Tiffany on Real Property, § 94, p. 233); but some constructive trusts are enforced where there was never for a moment any trusting of the trustee by the cestui. It is doubtless too late to hope to have a more accurate term displace "constructive trusts" as a name for the equitable obligations sought to be designated, but the same reason which impelled legal writers to deny that so-called quasi-contracts are "contracts implied by law" necessitates a denial that so-called constructive trusts are trusts "implied by law."

had B. make a feoffment in fee of the land to C., who was legally a stranger to A.

(3) Closely akin to the first kind of resulting use was the use found to exist where A. made the feoffment to B. and his heirs to 'the use of or in trust for C. for life, or on some other use which did not purport to dispose of the whole beneficial interest, or on a use which failed for some reason to take effect, and B.

consideration.

gave no

In case (1) the beneficial interest in fee resulted to A., but in case (3) only the undisposed of or ineffectually given part of the fee of the use belonged to A.

In each of the above-mentioned three kinds of uses named "resulting," the reason why the court of chancery indulged a presumption of fact that the land conveyed was held on a use for the feoffor or for the payer of the purchase money, was mainly because of the lack of consideration on the part of the feoffee, though that lack of consideration was significant only because feoffments on oral trusts for the feoffor had become so common that it was fair to assume that any feoffment not paid for by the feoffee, and not expressly made to the use of the feoffee or of another, was intended to be to the use of the feoffor, or of the third person, who paid the feoffor the purchase price and thus occasioned the feoffment. The presumption of fact of a use, like every other genuine presumption of fact, was deemed rebuttable in each case, however, and, it being established that no consideration was paid by the feoffee," the proper way to rebut it was to show that at the time of the feoffment a statement was made by the feoffor in the first and third kinds of so-called resulting uses, and a statement was made by the payer of the money in the second kind, that the feoffee should hold either to his own use or to the use of some third person. If one asks why chancery indulged the presumption of fact of a taking on a use or trust in these resulting-use cases, the answer, already foreshadowed above, is that the court of chancery took judicial notice of the vast number of feoffments on use which were being made. From the time when conveyances to uses became common down

7 Where the estate conveyed was less than the fee owned by the feoffor, and therefore involved the assumption of duties or liabilities by the one to whom it was conveyed, that assumption was regarded as consideration sufficient to make a presumption of resulting use unfair. See Castle v. Dod, Cro. Jac. 200.

to the Statute of Uses, it was very rational for chancery to take such notice and to indulge that presumption.

Then came the Statute of Uses. Its aim was to end the conveyance-to-uses orgy, - the old passive trust régime, - and that aim succeeded. It was not until about a century after the Statute of Uses was passed that the passive trust the modern passive use to which the Statute of Uses does not apply-made its appearance; and this later passive trust never was widely adopted, because the reasons which led to the vogue of the passive use had mainly ceased to exist. Accordingly, when chancery recognized the passive trust despite the Statute of Uses, and thus gave a use on a use its proper effect, the old presumptions of fact which led to resulting uses were not properly resorted to for the purpose of recognizing and enforcing resulting trusts. Still those presumptions persisted to some extent, though to how full an extent in England is not wholly clear. Since they have persisted, it is desirable to consider the presumptions which to-day are indulged in each of the situations in which originally resulting uses were raised.

The first resulting-use situation noted above was that of a conveyance without consideration. It is commonly believed that after the Statute of Uses if A., without consideration and without declaring a use, made a feoffment to B. and his heirs, the old presumption of a resulting use to A. in fee prevailed, and the Statute of Uses converted the presumed resulting use into the legal fee and nullified the feoffment.10 There is, however, a dictum of Lord Holt's to the contrary." If the commonly accepted doctrine was correct there was no need for a resulting trust in such case, as A., because of the statute, still owned the realty. On that theory there could be a question of resulting trust on a conveyance without consideration made by A. to B., only if the conveyance operated under the Statute of Uses or consisted of a common-law lease and a release.

A genuine bargain-and-sale deed required a valuable considera

8 See Ames, Lectures on Legal History, 246; 21 HARV. L. REV. 261, 273.

9 "Passive or simple trusts are not common in this country, and in some states it

is provided by statute that the legal title shall vest in the cestui que trust." 1 Tiffany on Real Property, $ 95, p. 236.

101 Tiffany on Real Property, 88 89 93.

11 See Shortridge v. Lamplugh, 2 L.d. Raym. 798, 801-802.

13

tion, of course, namely, "money or money's worth"; 12 so in the case of such a conveyance there was no chance for a resulting trust to be raised for want of consideration. A genuine covenant to stand seised to uses, "the consideration being blood or marriage," was usually in favor of a wife or child as against whom equity would indulge no presumption of trust, but in whose favor, on the contrary, it would indulge a presumption of gift or advancement; so here again there was in general no chance for a resulting trust to be presumed from want of consideration. However, by common-law lease and release, a method of conveyance not requiring livery of seisin, but requiring entry by the lessee to qualify him to get title by the deed of release, title could be passed without consideration. Then when the Statute-of-Uses method of conveyance by lease and release, which required in theory only the most insignificant consideration, and in practice no consideration, for its effectiveness,14 was invented, it became perfectly possible, and quite common, to transfer real property without entry into possession by the tenant, without livery of seisin and without consideration.

But in both the common-law lease and release and the Statuteof-Uses lease and release there was a stated consideration, and in addition in the Statute-of-Uses lease there was in the judgment of the common-law courts a use raised which the statute executed,

14 "The fact that the bargain and sale for a year, which was the foundation of the conveyance by lease and release, was expressed to be made for a nominal consideration that was in fact never paid, does not form any exception to the rule that a bargain and sale must, in order to take effect as a bargain and sale, be made for valuable consideration. The lease did not operate as a conveyance until it was perfected by the release; and both stages formed together one transaction. The acknowledgment of the fictitious consideration in the lease operated as an estoppel at law, and by the release, even though it were made for no consideration, the assurance became complete at law, without any need to resort to the equitable doctrine of bargains and sales. This assurance is therefore no exception to the rule, because it did not take effect by the means contemplated by the rule. If the validity of the use declared by the lease could have been raised in equity, as a substantive question, upon general principles it would have been permissible in equity to adduce evidence of the fictitious character of the consideration, and this might in equity have been fatal to the validity of the use. But the whole transaction was complete at law, where the doctrine of estoppel precluded all evidence touching the consideration; and when it had been completed at law, there existed no equity (except under special circumstances such as fraud, which are not in contemplation) to disturb the transaction." Challis's Real Property, 3 ed., 420.