surviving heirs at law of Charles F. Brain- so to do; that said deed is the same deed ard, and averred that some of them had quitclaimed the property to the plaintiff Buck. It is also averred that from the time of the death of Charles F. Brainard his widow lived in the house, and that she conveyed the premises to Buck by deed on March 31, 1882, and that he believed that the legal title was in him until the commencement of the ejectment suit, when he was advised that the will of Charles F. Brainard did not convey the property to his sister for the reason that it was acquired by Brainard after the execution of the will, which did not operate to convey after-acquired property. For relief, the bill asked that the plaintiffs in the action of ejectment might be perpetually enjoined from further prosecuting the same, and that it might be declared that the land in question was charged with a trust in favor of, and ought to be held for, the use and benefit of the plaintiff Buck, and that the defendants, or such of them as should appear to have the legal title to the lands, should be decreed to convey such legal title free and clear of all encumbrances done or suffered by them or any or either of them unto the plaintiff Buck. The defendant William H. Brainard demurred to the bill on the ground, among others, that the promise set forth in the bill was not in writing or signed by the deceased, Charles F. Brainard, and was within the meaning of the statute for the prevention of frauds and perjuries; also that Buck had been guilty of gross and inexcusable laches in bringing his suit. The demurrer was sustained with leave to the plaintiffs to amend. Pursuant to such leave the plaintiff served an amended bill, which was a full and complete bill, taking the place of the original, and restated all the facts set forth in the original bill, but left out the above quoted 8th paragraph. The complainants in the 9th, 10th, 11th, and 12th paragraphs of the amended bill made the following averments: "9. That from March 12, 1875, until June 3, 1880, the said plaintiff, Leffert L. Buck, sent to the said Charles F. Brainard, for investment as agent for him, the said [102 Leffert L. Buck, various sums of money,the particular amounts of which, and the dates at which they were received by said Charles F. Brainard, deceased, are stated in 'Exhibit D,' hereto annexed,-and authorized the said Charles F. Brainard, as agent for him, the said Leffert L. Buck, to invest the same in real estate, bonds, and securities in the city of Washington; that on or about the 18th day of July, 1879, the said Charles F. Brainard purchased the said property and premises hereinbefore described for the sum of $6,350, and paid on said purchase price the sum of $2,550 out of the moneys so sent to him for investment by the said plaintiff, Leffert L. Buck, as aforesaid; that upon said purchase the said Charles F. Brainard took the deed of said property to himself without the knowledge, consent, or authority of said plaintiff herein before mentioned as 'Exhibit B;' that thereafter and on or about March 12, 1880, said Charles F. Brainard made a further payment of $1,266.66 on said property out of said moneys so sent to him for investment by said plaintiff, Leffert L. Buck, as aforesaid; that on the 8th day of June, 1880, there still remained in the hands of said Charles F. Brainard out of the said moneys so received by him for investment as agent for the said plaintiff, Leffert L. Buck, the sum of $793.58, no part of which has ever been repaid to or received by said plaintiff; that on or about the 25th day of July, 1879, said Charles F. Brainard executed to John F. Waggaman and James A. Harban, trustees, a deed of trust on said property to secure payment of the balance of the purchase money then unpaid thereon, and that said deed of trust was executed without the knowledge, consent, or authority of said plaintiff, Leffert L. Buck; that after the 8th day of June, 1880, and before his death, the said Charles F. Brainard made further payments on said property, not exceeding in amount the sum of $650, out of the said moneys so received by him from said plaintiff for investment as aforesaid, the particular dates of which payments plaintiffs are unable more definitely at this time to state, for the reason that the books and accounts of the Western Building Association, to which said payments were made, have been destroyed. 10. That after the death of the said [103] Charles Brainard the plaintiff Leffert L. Buck was informed by his said sister, Cornelia A. Brainard, that she held the legal title to said property under the last will and testament of her said husband, which is the instrument herein before mentioned as 'Exhibit A,' and that there remained unpaid upon said trust deed the sum of $1,971.81; that thereupon, and on or about the 17th day of March, 1882, said plaintiff, Leffert L. Buck, paid the balance due upon said trust deed, which was thereupon discharged, to wit, the sum $1,971.81; and thereafter, and on the 31st day of March, 1882, the said Cornelia A. Brainard conveyed the said property to him by the deed referred to as 'Exhibit C,' and the said plaintiff, Leffert L. Buck, thereupon and on that day entered into and has ever since remained in undisturbed possession of said premises. "11. And the plaintiffs further show that all of the moneys that were paid for the purchase of said property, including the whole consideration thereof, were paid by the plaintiff Leffert L. Buck. "12. And the plaintiffs further show that not until after the said action at law No. 41,274, which is the suit of said William H. Brainard against James Coleman, had been brought, had the plaintiff Leffert L. Buck any information that the legal title to said premises did not pass to his sister, the said Cornelia A. Brainard, under the will of her said husband, Charles F. Brainard." The defendants demurred to this amend ed bill on the same grounds stated in the demurrer to the original bill, and also on the ground that a new and different cause of action had been set up in the amended bill from the one in the original bill. The demurrer was overruled, and the defendants thereupon answered, in which, among other things, they denied complainants' allegation as to the payments for the premises by Buck, and averred that the purchase money for the premises had been paid out of Charles F. Brainard's own funds in cash or by his notes secured by deed of trust, which notes were subsequently paid by Brainard. Upon the trial there was a final decree in favor of the complainants, and the defend[104]ants were enjoined from prosecuting *the action at law, and they were directed to convey, quitclaim, and release the real estate unto the complainant Buck, and in default of their doing so it was adjudged that the decree then given should operate and stand as such conveyance, quitclaim, and release. Messrs. Leo Simmons and Hugh T. Taggart argued the cause, and, with Mr. D. W. Baker, filed a brief for appellants: The amendments made to sworn bills must be consistent with the original bill. Marble v. Bonhotel, 35 Ill. 248; 1 Dan. Ch. Pl. & Pr. § 404, note 1; Ogden v. Moore, 95 Mich. 293, 54 N. W. 899; Hill v. Hill, 53 Vt. 582; Shields v. Barrow, 17 How. 120, 15 L. ed. 158. A party is not allowed to state one case in a bill or answer and to make out a different one by proof. Boone v. Chiles, 10 Pet. 179, 9 L. ed. 388; Henry v. Sutile, 42 Fed. 94. Even if Buck and Brainard agreed to buy the property together, each to pay equally and each to own one half, and the fact was established that at various times Buck's money had been used to pay all the purchase money, he would not be entitled to have the entire property, but only one half of it, and an accounting, with a lien for the balance due him. Dickson v. Patterson, 160 U. S. 584, 40 L. ed. 543, 16 Sup. Ct. Rep. 373. Transactions, although impeachable in equity at the time of inception and for some time afterwards, on the ground of fraud, may become unimpeachable by a subsequent confirmation, by acquiescence, or by mere lapse of time. Kerr, Fraud & Mistake, 296. The doctrine of acquiescence applies as between trustee and cestui que trust, even in cases of express trusts. Kerr. Fraud & Mistake, 303. All the parties concerned in or having any knowledge of the transactions are dead, save Buck alone. In his effort to enforce alleged obligations of the dead his averments of fact in his pleadings in regard to such obligations should be clear and consistent, and his testimony in support of them should be clear and consistent with them; if not he must take the risk of presumptions against him. Crosby v. Buchanan, 23 Wall. 420, 23 L. ed. 138. No fraud in the transaction being shown, the mere fact that Brainard saw fit to buy the property on his own account, and to use a part of the money in making the cash payment, giving his own notes to secure the remainder, is not sufficient to raise a resulting trust. White v. Carpenter, 2 Paige, 241; Bibb v. Hunter, 79 Ala. 352; McGowan v. McGowan, 14 Gray, 119, 74 Am. Dec. 668. See also Bailey v. Hemenway, 147 Mass. 326, 17 N. E. 645; Sayre v. Townsend, 15 Wend. 651; Olcott v. Bynum, 17 Wall. 59, 21 L. ed. 574; Ducie v. Ford, 138 U. S. 592, 34 L. ed. 1095, 11 Sup. Ct. Rep. 417; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 281. Lapse of time and the death of the parties to the deed have always been considered, in a court of chancery, entitled to great weight, and almost controlling circumstances when the controversy grows out of stale transactions. Jenkins v. Pye, 12 Pet. 254, 9 L. ed. 1075; Hammond v. Hopkins, 143 U. S. 224, 36 L. ed. 134, 12 Sup. Ct. Rep. 418. If the case, as it appears at the hearing, is liable to the objection of staleness, by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief. Richards v. Mackall, 124 U. S. 187, 31 L. ed. 399, 8 Sup. Ct. Rep. 437. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting the court is passive and does nothing. Smith v. Clay, 3 Bro. Ch. 640, note; Speidel v. Henrici, 120 U. S. 387, 30 L. ed. 720, 7 Sup. Ct. Rep. 610; Brown v. Buena Vista County, 95 U. S. 157, 24 L. ed. 422. Mr. E. V. Brookshire argued the cause, and, with Mr. Nelson L. Robinson, filed a brief for appellees: If an agent invests his principal's money in land, and takes a deed in his own name, with or without the principal's consent, a trust will arise. Witts v. Horney, 59 Md. 584; Keller v. Keller, 45 Md. 270: Crocker v. Crocker, 31 N. Y. 507, 88 Am. Dec. 291; Moffatt v. Shepard, 2 Pinney (Wis.) 66; Depeyster v. Gould, 3 N. J. Eq. 474, 29 Am. Dec. 723; Hall v. Sprigg, 7 Mart. (La.) 243, 12 Am. Dec. 506; Rose v. Hayden, 35 Kan. 106, 10 Pac. 554; Burden v. Sheridan, 36 Iowa, 125, 14 Am. Rep. 505: 2 Pom. Eq. Jur. § 1037; Philips v. Crammond, 2 Wash. C. C. 441, Fed. Cas. No. 11,092; 2 Story, Eq. Jur. 13th ed. §§ 1201, 1211a, 1265. Where a trustee or other person standing in a fiduciary capacity makes a profit out of any transaction within the scope of his agency or authority, that profit will belong to the cestui que trust. In cases of this sort the cestui que trust is not bound at all by the act of the other party. He has, therefore, an option to insist upon taking the property, or he may disclaim title thereto and proceed upon any other remedies to which he is entitled, either in rem or in personam. Story, Eq. Jur. 13th ed. §§ 1261, 1262; Day v. Roth, 18 N. Y. 448. It is not necessary to an equitable estoppel 'ald, 24 Ind. 68; Hidden v. Jordan, 21 Cal. that there should be a design to mislead. Manufacturers' & T. Bank v. Hazard, 30 N. Y. 226; Blair v. Wait, 69 N. Y. 113. A party need not have acted affirmatively upon a declaration, to claim an estoppel, if he has been led thereby to refrain from using means to retrieve his position. Continental Nat. Bank v. National Bank, 50 N. Y. 575; Voorhis v. Olmstead, 66 N. Y. 113. 92; Follansbe v. Kilbreth, 17 Ill. 522, 65 Am. The plaintiff Buck is not chargeable with Ruckman v. Cory, 129 U. S. 387, 32 L. ed. 728, 9 Sup. Ct. Rep. 316. The defendant William H. Brainard is not An owner of an equitable title in posses-entitled to relief, neither should he be persion is not obliged to take steps to establish mitted to prosecute his suit at law by reahis title until his possession is disturbed or son of his laches. his title attacked. 18 Am. & Eng. Enc. Law, 2d ed. title Laches, subdiv. VII. ¶ 7, p. 125; Townsend v. Vanderwerker, 160 U. S. 176, 40 L. ed. 385, 16 Sup. Ct. Rep. 258; Ruckman v. Cory, 129 U. S. 387, 32 L. ed. 728, 9 Sup. Ct. Rep. 316. Moreover, Mr. Buck, a nonresident, is not chargeable with notice of the law of the District of Columbia, now obsolete, that a will did not then pass after-acquired realty. Stedman v. Davis, 93 N. Y. 32. Mr. James Coleman filed a brief for appellee Leffert L. Buck: If the original and amended bills stated different causes of action, the appellants' remedy was, not by demurrer, but to strike the amended bill from the files. Jones v. Van Doren, 130 U. S. 684, 32 L. ed. 1077, 9 Sup. Ct. Rep. 685. It was a proper exercise of discretion on the part of the court below to permit the plaintiff's to amend their bill. Story. Eq. Pl. § 834; Richmond v. Irons, 121 U. S. 27, 30 L. ed. 864, 7 Sup. Ct. Rep. 788; Neole v. Ncale, 9 Wall. 1, 19 L. ed. 590; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Joncs v. Van Doren, 130 U. S. 684, 32 L. ed. 1077, 9 Sup. Ct. Rep. 685. Richards v. Mackall, 124 U. S. 187, 31 L. ed. 399, 8 Sup. Ct. Rep. 437; Speidel v. Henrici, 120 U. S. 377, 30 L. ed. 718, 7 Sup. Ct. Rep. 610: Brown v. Buena Vista County, 95 U. S. 157, 24 L. ed. 422; Crutchfield v. Hew ctt, 2 App. D. C. 373; Cammack v. Carpenter, 3 App. D. C. 219; Baker v. Cummings, 4 App. D. C. 273; Levis v. Kengla, 8 App. D. C. 230. *Mr. Justice Peckham, after stating the[104] court: above facts, delivered the opinion of the The appellants insist that the supreme court of the District had no power to authorize the amendment which was made by the appellees to their original bill in this suit, because, as they assert, the cause of action set forth in the amendment is new, different, and distinct from that set forth in the original bill, and that therefore the demurrer to the amended bill should have been sustained. We fully agree with the courts below in holding that the allowance of the amend ment was within the discretion of the court, and that the demurrer on the grounds stated was properly overruled. The case comes within the principle of Jones v. Van Doren, 130 U. S. 684, 690, 30 L. ed. 1077, 1079, 9 The demurrer to the amended bill having Sup. Ct. Rep. 685. The purpose in both been overruled, it follows that if the court bills was the same,-to establish a resultshall find that the evidence sustains the billing trust in favor of the complainant Buck the decree of the court below should be af- on account of the transactions set forth in firmed, unless the court should also find that the bills; and while the reasons are stated the court below erred in permitting the more fully in the amended bill, and in some plaintiffs to amend their bill. This, we sub-respects differently from those in the origi mit, was not error. Story. Eq. Pl. SS4; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141. 5 Sup. Ct. Rep. 771. If the property in question was paid for by the plaintiff Buck, or with money in the hands of Charles F. Brainard belonging to said Buck, an implied or constructive trust is created by operation of law, by which the property became vested in him. Anderson, Law Dict. title Trusts; Perry, Tr. § 168: Pom. Eq. Jur. p. 1049; 1 Story, Eq. Jur. p. 187; Adams. Eq. p. 36; Michigan Air Line R. Co. v. Mellen, 44 Mich. 321, 6 N. W. 845; Johnson v. Dougherty, 18 N. J. Eq. 406; Watson v. Thompson, 12 R. I. 466; McMurry v. Mobley, 39 Ark. 309; Hall v. Linn, 8 Colo. 264, 5 Pac. 641; Conant v. Riseborough. 139 11. 383, 28 N. E. 789; Smith v. Profitt, 82 Va. 832, 1 S. E. 67; Balloch v. Hooper, 6 Mackey, 421; Ferguson v. Williamson, 20 Ark. 272; McDonald v. McDon184 U. S. U. S., BOOK 46. 29 nal bill, yet the purpose is the same, aris- Upon the merits of the case, the two 453 and cases there cited. After examining the evidence in the case, we are not convinced that the findings of the court below were erroneous, but, on the contrary, it seems to us that they are justified by the evidence. In regard to the evidence on the part of the complainants given on the trial, defend ants assert it to be different from and inconsistent with the statements of fact contained in the amended bill, but a careful perusal of the whole evidence fails to convince us that there exists any such real and material inconsistency, but, on the contrary, the evidence substantially corroborates and justifies the averments of the amended bill. The account book of the deceased Brainard was put in evidence, and some criticism has been made by counsel for the defendants in regard to the manner in which the deceased kept his accounts, as evidenced in that book, and some faint claim seems to have been made that the book showed that moneys had been sent by Brainard to Buck instead of the reverse, as claimed by Buck. This criticism arises on account of the position of the words "Dr." and "Cr." with regard to the statement of the account between the two people. However, a perusal of the accounts in the book, taken in connection with the statement of the account between the parties made by Brainard in his lifetime and in his handwriting and given to complainant Buck, shows beyond any controversy that the moneys were advanced by Buck to Brainard, and not the reverse. There is really no contradiction of the evidence on the part of the complainants that it was the money of Buck, and his alone, which paid for the property in question. From the evidence which was taken upon [106]the trial, and upon which the trial court gave judgment in favor of the complainants, the court of appeals itself found the facts similar to the averments in the amended bill, and stated them as follows: "Leffert L. Buck was a civil engineer and a bachelor. His residence was in the city of New York; but his professional engagements called him to different parts of the world. He testified that he went to Peru in 1875, and before leaving sent about $200 to Brainard for investment. He continued to send sums of money from time to time from 1877 to 1880, and during the latter year. Brainard invested from time to time in bonds which he sold for reinvestment. "Brainard kept an account book, which has been preserved, and the entries therein of money received from Buck correspond with a statement rendered to the latter and produced by him in evidence. and of insurance against Buck. The deed was made to Brainard. "Buck testified that early in 1880 he learned that the deed was in the name of Brainard alone, and suggested to the latter to convey to him and he would pay the balance, and Brainard and wife could occupy the house as a home. Brainard was then in bad health. He did not wish to make the transfer then, saying that when he recovered he would be able to go on and pay the balance on the property, and would also be able to pay for Buck's half, and he thought that better than to go to the expense of making two transfers. He said that, in any event, the property would go to his wife with everything that he had in case of his death. He was sick and nervous, and Buck did not press the matter. Brainard died of Bright's disease, and was suffering therefrom at the time, though it was not then known. *"On March 12, 1880, he paid $1,266.66 on[107] the mortgage with Buck's money in his hands. "Some time after that Brainard made a statement in writing of the cost of the property, showing the payments made with Buck's money, and stating therein that he proposed to convey to Buck a half interest in the property, and to give him his note for the excess paid over one half. pected to be able to pay back to Buck this excess, and also to finish paying for the property. He ex "Buck testified that he did not agree to this, but let matters run on because of Brainard's nervous condition, and because he expected the will of Brainard would invest the legal title in his sister. Brainard died without completing the payment for the property. "Mrs. Brainard remained in possession, claiming under the will, but conveyed the title to Buck, who paid the last mortgage, amounting to nearly $2,000. Mrs. Brain ard made her home there until she died on March 31, 1892. Buck was frequently there, and contributed to her support. When she died he leased the property and has since collected the rents, kept the property in repair, and paid all the taxes. "Without going into further details, it is sufficient to say that the evidence on behalf of Buck, corroborated on all material points by the entries in the book of Brainard, shows clearly that the purchase of the property was made with his money in the hands of Brainard for investment; and that Brainard was his agent and trustee, and not his debtor for money lent for the purpose. From these facts it is clear that a trust resulted in favor of Buck, which entitled him to a conveyance of the legal title. 2 Pom. Eq. § 1037." [16 App. D. C. 595.] We think the law in this respect was cor "Buck testified that he suggested the joint purchase of the house and lot in controversy, which Brainard wrote him could be had for $6,350. Brainard made the pur-rectly stated by the court below. chase at that price on July 18, 1879, mak- The defendants also rely upon the defense ing a cash payment thereon of $2,550 with of laches on the part of the complainants, Buck's money, as the account book shows. in that they permitted so long a time to The remainder was raised by mortgage. The elapse after they knew that the title was in account book, under the same date, shows the name of Brainard. the charge of the cost of recording the deed, We also agree with the court below that this defense is not sustained. When the Upon this subject we fully agree with [108]knowledge came to the complainant *Buck what was said by Mr. Justice Shepard, in that the title was in Brainard, Buck asked delivering the opinion in this case in the him to transfer it to the complainant, and court of appeals, as follows: stated that he (Buck) would pay the balance of the purchase money unpaid on the premises. This Brainard disliked to do, and wanted Buck to wait and see if he (Brainard) could not make payments, and thus keep the house for himself. During this time Brainard was ill, and, as it subsequently appeared, was then suffering from Bright's disease, although he did not then know the cause of his illness, and the complainant says that he acquiesced because he did not wish to worry Brainard, and so the matter ran on for a little while, and was terminated by the sudden death of Brainard without anything having been done. "Buck entertained affection for, and had perfect confidence in, Brainard. He was anxious to secure a comfortable home for his sister. Brainard became seriously ill, and his condition was such that Buck would not aggravate it by importunity. Besides, he was assured that Brainard would devise the property to his sister. In fact, Brainard had made, and executed with due formality, a will leaving everything to his wife. This will was then, and until the institution of the action of ejectment, supposed to operate a conveyance of the propertv in question. Buck, so believing, took a conveyance from his sister, who was childless, and paid off the last encumbrance, He suffered her to occupy the house until her death. In the meantime, none of the heirs-at-law of Brainard made any claim This did not amount to any settlement, nor did it in any way bar the rights other wise existing in favor of the complainant Buck. It was a mere hope expressed on the part of Brainard that he might thereafter to the property. Their apparent acquiesbe able to pay for the house and a passive acquiescence on the part of the complainant that such effort might be made. As is said, nothing was ever in fact done, and no real alteration was ever made in the position of the two parties. cence tended to confirm Buck, who was in We have, then, the conditions of the title taken to the property in the name of Brainard, unknown to the complainant at the time, and the money furnished by Buck to Brainard as his agent, and put into the purchase of the house and lot. Subsequently, and a short time before the death of Brainard, Buck discovers the fact, and Brainard and his wife are then living on the premises. He knows that Brainard has made a will in favor of his wife, for he has been told by Brainard that upon his death everything was to go to her, and wants his sister to have a home, and is entirely satisfied in that way. He believed that the property would pass to the wife by the will in case of the death of Brainard. After Brainard's death, his widow (complainant's sister) remains in the house, and Buck contributes to her support while living there. She conveys the premises to him by deed, and he supposed that he thereby acquired full title to the premises, and paid the balance of the purchase money. After the death of his sister he takes possession of the property, and has continued in possession ever since, [109] and it was not until after the commencement of the action of ejectment that the complainant Buck had any knowledge that the legal title to the premises did not pass to his sister under the will of her husband, because it was acquired subsequently to that The last objection made by the appellants will. That action of ejectment was com- consists in an assertion that in no possible menced in 1897. and this bill was filed view of the evidence, even upon a proper April 15, 1898. These facts, we think, are bill, could Buck be properly held to be ensufficient to excuse all the delay that has titled as a matter of equitable right to been shown to exist in this case. It is cov- more than a decree for an accounting, ered by the principles laid down in Ruckman v. Cory, 129 U. S. 387, 389, 32 L. ed. 729, 9 Sup. Ct. Rep. 316, and Townsend v. Vanderwerker, 160 U. S. 171, 185, 186, 40 L. ed. 283. 388, 16 Sup. Ct. Rep. 258. wherein he should be credited with ad- |