Lucilla P. Kelley, Adm'x, in Equity, versus Horace Jenness and Roderick D. Hill.
Where A, being the owner of certain land, conveyed it to B in mortgage, with the usual covenants of warranty, and afterwards paid the amount due on a prior mortgage of the same land, and took an assignment of thp mortgage to himself, the title thus acquired by A, unexplained, would enure to the benefits B.
But if the prior mortgage was in fact purchased by C, and the consideration paid by him, and the mortgage, immediately after its assignment to A, was by him, pursuant to a previous arrangement of the parties, assigned to C, or assigned in blank, and delivered to C, with power to fill the blank, the assignment to A was clearly for the use of C, and an implied resulting trust in favor of C at once attached to the conveyance made by the first mortgagee to A.'
A trust estate does not, like an absolute estate, enure to the benefit of the grantee of the trustee, when the latter made the conveyance in his individual capacity. And an implied trust is governed by the same principles, and subject to the same general rules, as other trusts.
But, if a part of the money was paid on the mortgage by A, and a part by C, the implied trust in favor of C will extend no further than the amount paid by him, whether more or less.
Bill in equity.
Cyrus L. Clark, Sept. 10, 1852, conveyed in mortgage to Samuel H. Blake, township No. 7, 11th range west from the east line of the State, to secure anote for $7665,97. Nov. 2, 1852, Clark conveyed the same premises by deed to Horace Jenness. Dec. 2, 1852, Jenness conveyed the same township in mortgage to Webster Kelley, the plaintiff’s intestate. Clark’s deed to Jenness, and Jenness’ mortgage to Kelley, were acknowledged and delivered on the same day, June 15, 1853, and both recorded in the Piscataquis Registry of Deeds, June 16, 1853. The mortgage to Kelley was to secure the payment of a note of Jenness for $8000 and interest.
The plaintiff alleged in the bill that the note to Kelley remained unpaid, and claimed the right to redeem the mortgage given by Clark to Blake. The bill then sets forth *456sundry sums paid on the Blake mortgage in part payment, and alleges that, on July 23, 1860, Jenness paid to Blake the full remaining balance due him, being $4614,58, the actual amount due Blake at that time not exceeding $3700, and, at the time of said last payment, Jenness took from Blake an assignment of his mortgage, and still holds it; and further, that Blake advertised his mortgage for foreclosure, in the "Piscataquis Observer, the last publication being Feb. 17, 1859, and caused the advertisement to be duly recorded.
The bill further alleges, that, on Sept. 8, 1860, the plaintiff in writing notified Jenness of her right as administratrix to redeem the mortgage, and demanded an account of the sum due thereon, also of the rents, profits and income received from the lands mortgaged, the expenditures thereon, and the several payments made on the note and mortgage. Jenness afterwards in writing made the following answer :—
"Amount due on the Blake mortgage, $7036. September 15, 1860. "H. J.”
The bill further alleges that Jenness has made no further answer, and that the answer made is defective, false, and not a legal reply; that there is no such sum due on said mortgage, and, if any sum is due, it is no more than $3700 ; that the claim of Jenness to any further sum is unjust; and that he seeks to deprive the plaintiff of her right to redeem, by taking advantage of the foreclosure commenced by Blake.
After the filing of the bill, the plaintiff was permitted to amend by inserting the name of Roderick D. Hill as an additional defendant. The amendment alleges that the plaintiff has been informed that Hill had possession of the mort.gage and note, and claimed that the mortgage had been assigned to him by Jenness; but the plaintiff alleges that no such assignment is on record, and denies that Hill had any assignment, if at all, until after the plaintiff’s demand on Jenness to account, but that, if any assignment was made, it was made in blank, and no assignee’s name inserted for a long time after Blake’s assignment to Jenness.
*457The bill further alleges that, on Feb. 2, 1861, the plaintiff in writing notified Hill of her right to redeem, and demanded of him an account of the amount due on the mortgage; but he has neglected to make any answer.
The plaintiif thereupon offers to pay all sums equitably due on the mortgage, and to perform all the conditions thereof, and prays for relief.
Jenness, in his answer, declares that, on July 23, 1860, Blake executed an assignment of his mortgage to the respondent, but did not deliver it nor the note secured by it to him ; that B. D. Hill, by Ms agent, J. S. Bicker, purchased the note of Blake, and paid therefor; and Blake indorsed and delivered the note and mortgage, with the assignment of the respondent thereon, to said Bicker, agent of Hill; and the respondent at the same time, and as part of the same transaction, executed an assignment of the mortgage and delivered it to said Bicker, as agent of Hill; that the respondent has never been the owner or holder of the note nor of any title under the mortgage save momentarily, and for the purpose of transferring the same to Hill, and Hill has ever since held the same, as the respondent believes.
Jenness denied that be had furnished any account to the plaintiff when demanded, but had, as a matter of courtesy, given her a written memorandum of what be believed to be due on the mortgage.
Hill, in his answer, denies that Jenness paid to Blake the amount due on the note, or that any one had paid it in full; alleges that he (Hill) purchased the note and mortgage of Blake through Bicker; that it was by the choice of Blake, in which the respondent had no interest, that the mortgage was passed to the respondent through an intermediate assignment to Jenness; that, at the same time .that Blake’s assignment was executed, Jenness made and signed an assignment of the mortgage, with a blank for the name of the assignee, and delivered it to Bicker; that Bicker delivered the note, mortgage and assignment to the respondent, who has had them ever since; and that the respondent’s name was in*458serted in the assignment afterwards, he thinks, soon after the plaintiff filed her bill. .
Eicker, called by the defendants, testified that he went to Blake, at the request of Hill, and paid him some money for the purchase of Clark’s note and mortgage, and received-from Blake the note, mortgage and assignment from Blake to Jenness, and also an assignment from Jenness with a blank for the name of the assignee, with verbal authority from Jenness to insert any name as assignee that Hill might desire. Hill had directed him to obtain an assignment in blank, as he might wish to have it run to his brother.
There was evidence tending to support the allegations in the bill, and also to the contrary. There was likewise evidence tending to sustain the statements contained in the answers, and evidence to contradict some of those statements. There was also considerable testimony as to the amount paid, and the balance due, on the note and mortgage, and as to who made the several payments on the mortgage note.
A. W.. Paine, for the plaintiff,
argued that the facts alleged in the bill, and proved, showed payment of the Clark note and mortgage. But, if not,—
1. The plaintiff has the right to redeem the mortgage : —
2. The plaintiff has proved a legal demand for an account, made upon the holders of the mortgage : —
3. The assignment of the mortgage to Jenness, who had. previously, as the owner of the fee, conveyed to the plaintiff’s intestate with full covenants of warranty, had the legal effect to discharge the mortgage, at least so far as it affected the Kelley title.
But it is contended by the defendant, that the assignment to Jenness was merely formal and momentary, and the assignment from him to Hill being part of the same transaction, Jenness was amere conduit or medium of title; and that the assignment was paid for by Hill, and was in trust for him.
*459In reply,
the counsel argued, — 1. The transaction whereby the mortgage passed from Blake to Jenness was an entire and complete fact. The act of passing it to Hill was an independent fact, based on a new and different consideration to a great extent, and forming no necessary part of what had already been done. The consideration from Jenness to Blake was $4614; that from Hill to Jenness $5114. This appears by the testimony. Although both assignments were made at the same time, there was a rest long enough for the title to vest in Jenness. It is well settled that when •a title passes to one from whom it takes a new start, as from a new base, the noAV title is considered as coming from the intervening party, and subject to all the incidents flowing from that fact. 1 Wash. B. E., 178; Gage v. Ward, 25 Maine, 101; Gerrish v. Lee Normal Academy, not yet reported; Somes v. Skinner, 3 Pick., 52.
But there was no such momentary seizin. The actual assignment to Hill was not made until the blank was* filled with his name, long after Blake’s-assignment to Jenness.
2. If there is any trust, it is aji implied, not an express trust. But is there any trust ?
Jenness, by his own statement, negotiated the assignment with Blake, without mentioning Hill’s name. His motive, as he explains it, was a personal one. Hill’s name was not even inserted in the assignment Jenness executed. The first notice of Hill’s interest was imparted by the respondent’s answer to the bill in the case at bar, nearly four mouths after service on Jenness. Hill’s name Avas not inserted in the blank assignment until after the plaintiff’s bill was filed.
So far as third parties are concerned, the construction and effect of deeds must depend upon their own language and express terms. Neither equity or larv can vary the construction of a legal instrument, nor its effect as dependent on its inherent terms. This is emphatically the case with instruments which the .law requires to be recorded.
The only exception is in cases which arise outside and independent of the instrument oí title. The effect of the *460deed is not changed, but the result arising is a new thing flowing from what the deed is, and in addition to it. Such is the nature of a constructive trust, being built upon the legal title as its base. The trust title is engrafted on the legal, not a substitute for it.
The legal base, as the main stock of the tree, retains its distinctive character, and is still subject to its own rules of construction and effect. Whatever effect the trust has, it does not change the base, but is a superstructure upon it.
Hence the question of trust is one arising solely between the alleged trustee and his cestui que trust. No others can be involved, unless those in privity with one or the other. Those not in privity are to be governed by the form of the title which the record discloses.
The plaintiff is in no degree privy with either-of the defendants in estate or title. Her rights are of record, and she is bound by no trust or confidence affecting her claim. Her legal title was far back of Blake’s assignment. When Jenness received the mortgage, it enured to her benefit under his covenants. Jenness was at once estopped to deny her right to the benefit of the removal of the incumbrance. When Hill’s trust began to operate, it took the legal title subject to the defect created by the estoppel.
If an unrecorded assignment is allowed to defeat or change the effect of the record title, all reliance on records is at an end. If a secret and carefully concealed trust is to come in and cut off the rights of the party having the record title in this case, there is no case where it may not be done; and it may be asked, where is the security of the public in their titles to be found ?
The only safety is in an entire rejection of so dangerous a doctrine, and by limiting the effect of constructive trusts to the parties themselves and their privies, and persons having actual or presumed knowledge of the trust.
3. But, if the doctrine be as the respondents contend, its applicability to the case at bar is denied.
The case is to be treated as it would rest on Blake’s as*461signment to Jenness. The assignment to Hill was not made till after suit brought, and therefore is not admissible in evidence.
Besting on Blake’s assignment to Jenness, the legal effect is very clear. The mortgage was discharged. Why should it not be so? The plaintiff is in no privity with cither party, and had no notice of any right in Hill; but was cognizant of Jenness’ bargain with Blake, and knew that Jenness claimed to be interested in the right of redemption.
Both JennesS and Hill knew of the Kelley mortgage. If they did their business with Blake in such a manner as to get them into trouble; it was their misfortune. It was no mistake of fact or erroneous representation that led them into trouble; but, if misled at all, it was by ignorance of the law applicable to their acts. Prom such ignorance, equity cannot relieve any more than can the law. O'. S. Banlc v„ Daniels, 12 Pet., 32; Warren v. Jameson, 6 Gray, 559; Glark v. Burnham, 2 Story, 15.
Hill’s acceptance of the assignment from Jenness rebutted the presumption of a trust. Livermore v. Aldrich, 5 Cush., 231; 1 Poster, 470. Neither can there be a trust implied when there is an agreement about the matter. If a deed is made according to the agreement of the parties, there is no trust, though there may be a loss. Hunt v. Morse, 6 Cush., 1; 2 Wash. B. E., 175. And if the deed is made under the direction of the party who owns the money, there is no resulting trust. St. John v. Benedict, 6 Johns. Ch., 117.
Where real estate is purchased by one with the money of another, and a conveyance is taken in the name of the former with the consent of the latter, there is no resulting trust. Nutter v. Stevens, 8 Paige, 222. Hill on Trusts, §§ 91, 92, lays down as a principle that, in order to raise the presumption of a trust, the parties must be, quoad hoc, strangers. Por some breach of faith or wrong done is implied, which the Court will correct by declaring a trust. 2ufts v. Tufts, 3 Wood. & M., 462. So that, if a purchase be by two, and the deed be to one of them, there is no *462trust. Hill on Trusts, § 92. Here the deed was taken with the knowledge of Hill, and in fact by Hill himself, acting by his agent Ricker.
The presumption that the purchase was made for the benefit of the person who' advanced the money, and that the conveyance was in trust, may be rebutted by evidence to the contrary, and the trust defeated. If the money was lent by Hill to Jenness, whether there was' any security or not, the money ceased to be the lender’s property, and the conveyance was not in trust. It is contended that such was the ease here, that Jenness borrowed of Hill, and that the mortgage was bought of Blake for Jenness’ own benefit. There is evidence to support this view. And it is made more apparent by the reason given by Hill for the assignee’s name being left blank, that he did not know who would have the mortgage, his brother or himself, and it might be paid for by his brother’s money. This .shows that it was to be a loan, for there is no pretence that his brother contemplated becoming the purchaser.
In order to create a trust, as here alleged, the whole consideration should come from the cestui que trust, and no part from the alleged trustee. Baker v. Vining, 30 Maine, 127 ; McGowan v. McGowan, 14 Cray, 119, and note 122; White v. Carpenter, 2 Paige, 240. And any payment made subsequent to the transaction does not raise a trust. 2 Wash. R. E., 175 ; Buck v. Swazey, 35 Maine, 41; Bots-ford v. Burr, 2 Johns.' Ch., 405.
In the ease at bar, all the evidence shows that a part of the consideration was paid by Hill, and a part by Jenness; and that several sums were paid after the assignment.
Again, a resulting trust cannot be raised against the intention of the parties to the legal title, meaning the grantor as well as the other parties. White v. Carpenter, 2 Paige, 217; Rogers v. Ross, 4 Johns., Ch., 388 ; Grove v. Mann, 27 Maine, 212. A trust is declared in such oases to carry out the intention of the parties, and to prevent fraud. Brown v. Lynch, 1 Paige, 147. Here Blake refused to as*463sign to any one but Jenness, according to all the evidence. Will the Court give to Blake’s assignment a different and contrary effect to what he intended ? Is not that making a new agreement for the assignor, to which ho is no party, and against his consent ?
.Rowe & Bartlett, for the defendants, argued the case orally, and no brief has come into the hands of the Reporter.
The opinion of the Court was drawn up by
Kent, J.
Horace Jenness, on the 2d of December, 1852, made his deed of mortgage to Webster Kelley, the intestate, of a township of land. The deed was in the usual form and contains the usual covenants of general warranty. It was given to secure payment of a note for eight thousand dollars, given by Jenness to Kelley. The deed was acknowledged and delivered on the 15th of June, 1853. At this time there was an incumbrance on the township, created by a prior mortgage to secure a note to S. H. Blake for STGdSfiA" given by Clark, who then had the title.
The original bill alleges that Blake, in July, 1860, received the amount then due, on that prior mortgage, from Jenness, and thereupon assigned the note and mortgage to Jenness, who still holds the same.
On such a state of facts, there could be no doubt that such payment would enure by way of estoppel, or implied trust, to the benefit of Jenness’ grantee, to whom he had conveyed with covenants of warranty. The mortgage, which' was paid, was an incumbrance, which was covered by the warranty, and it was the duty of Jenness to pay it and remove the incumbrance. The assignment of tire mortgage to him could give him no right to set it up against his grantee, but, if of any effect, it would bo held only in trust for Kelley. Equity would treat it as paid and discharged as to Kelley, on the simple principle that a person purchasing in and taking the assignment to himself, of an incumbrance which he was himself under an obligation to discharge, acquires in equity no title against one to whom he *464was bound to remove the incumbrance. The common law doctrine of estoppel, where there are covenants in a deed, leads to the same conclusion. Kellog v. Wood, 4 Paige’s Ch. Rep., 589; Van Horne v. Crane, 1 Paige, 459; Bradley v. George, 2 Allen, 392.
But the respondents in this case say that there are other facts on which their rights must depend.
It is clearly established that the assignment, by Blake of his mortgage, was made to Jenness on the day the money was paid. It is also proved, and not denied, that Jenness, on the same day, executed an assignment, with a blank for the name of the assignee, and that afterwards the name of B. D. Hill, the respondent, was inserted therein.
We think that it is also proved that the sum of $4614x5(S8¡y which was paid to Blake on the day of the assignment, was furnished by Hill, was his money and was paid by his agent to obtain an assignment of the mortgage to himself and for his benefit. Jenness on that day paid nothing. It was not a loan of that money from Hill to Jenness, to enable him to pay the mortgage. Hill paid the money to obtain the assignment of the mortgage to himself, for his own use and benefit. Jenness negotiated the business until the time of payment, but he did it, as he says, for Hill. His object was to have the mortgage in some, person other than- the person then holding it. But Hill manifestly paid the money, not for Jenness’.benefit, but for his own. He expected an assignment to himself or to some one for his benefit. It would doubtless have been so made, if Mr. Blake had not promised the attorney for the complainant that he would assign to no one but Jenness.
On this state of facts, it is clear that, as between Jenness and Hill, the assignment to Jenness was for the use of Hill, and that a .resulting trust attached at once to the conveyance in favor of Hill. It is a settled doctrine that when a man purchases an estate with his own money, and the deed is taken in the name of another, a trust is implied by law, and this trust may be proved by parol. There are numerous *465authorities in this State ; and in England and in other States, which sustain this principle. It is entirely unnecessary to cite them. They can be found in any digest.
But it is contended by the complainant, that although this may be so as between the two parties named, yet that Kelley’s legal rights could not be affected, and that when the legal assignment was made to Jenness, it instantly enured to the benefit of his grantee, by force of the estoppel created by his covenants. The question then is, did Jenness acquire such a title that, notwithstanding the implied trust, it enured to the benefit of Kelley.
It is important to observe the relations of all these parties. Kelley was not a subsequent purchaser, nor a creditor Avho had levied on the land, and therefore not within the saving provision of the statute in relation to implied trusts. K. S., c. 73, § 12. His right was to redeem that mortgage. This Avas all that was conveyed to him in fact. His other rights rested upon the covenants in the deed to him. His rights were not impaired or his situation changed by the transfers of the mortgage from Blaké to Hill. The complainant does not contend that they were, but insists that, by operation of law, the estate she represents has obtained the payment and discharge of the mortgage, Avithout paying any part of it. This, as we have seen, would have been the result, both legal and equitable, if Jenness had in fact and truth paid it, and the equitable rights of another party had not come in question.
Is a trust estate, or a conveyance charged with a trust, such an after acquired title as will enure to the benefit of one to whom the trustee had before conveyed in fee with covenants of warranty?
In the case of Jackson v. Mills, 13 Johns., 463, it was held, where one took a deed, merely as trustee for another, although absolute in form, and the consideration was paid by-the other, and thereupon he gave him a deed, that the latter deed was a mere execution of his trust and did not *466operate as an estoppel to any title he might thereafter acquire in his own right to the same lands.
The case of Jackson v. Hoffman, 9 Cowen, 271, reaffirms the above case, and decides that estoppels do not apply, except between parties acting in the same character. In that case, the purchase was made by one in his individual capacity, and the covenant was made by him as administrator. Sinclair v. Jackson, 8 Cowen, 565, sustains the same view, and the Court say, — "A conveyance to operate as an estoppel, it is necessary that it should be in the same right with the former one. To estop, a conveyance must be by one claiming under and in right of identically the same power and the same estate as he first conveyed.”
If, as we have seen in the case before us, Jenness took the assignment of the mortgage charged with a trust, it was not in the same character and of the same estate as in his deed to Kelley. He was here a mere trustee. There can be no division or separation in the effect of the assignment. He did not take a conveyance and afterwards have engrafted thereon a trust, allowing the legal estate to vest absolutely and for a time, before any trust arose. The assignment was charged with the trust, as soon as executed.
Is a trust estate such an after acquired title as will enure by way of estoppel ? It would hardly be contended that a conveyance to one as trustee for the use and benefit of a charitable association, or a religious body, would thus enure. Nor where the conveyance creates a trust and declares it fully in the deed, and the purpose is to give the whole benefit of the estate to a party named and no 'personal benefit to the trustee.
But an implied trust is equally a trust for the benefit of another, as when the trust is declared in writing. It may require a different mode of proof to establish its existence, and it may be limited in case of purchasers without notice. But, being established, it follows the general rules and is subject to the doctrines applicable to trusts.
*467A case very similar to this is found in 11 Ohio Reports, 316, Burchard v. Hubbard. It was where a person, who had no title, conveyed by deed of warranty, and afterwards received title as trustee from the owners, for the purpose of transmitting it to a bona fide purchaser. The Court say that, in suph a case, the doctrine of estoppel does not apply ; that a mere naked title was all that passed through him ; that the title was conveyed as a mere matter of convenience ; that it constituted him a mere trustee of the naked legal title; that a trust resulted to the party who paid the money: that, if he had acquired for himself the legal and equitable title, he would have been estopped by reason of the covenants, but it being a mere trust estate no such estoppel can apply.
A doctrine analogous to this is found in those cases whore the party taking the deed is a mere conduit of the title, an instrument by whom the title is to be taken to carry out the understanding of the parties, he, in fact, having no real interest. In such cases it has been hold that the title would not enure to the benefit of a former grantee. Runlet v. Otis, 2 N. H., 167; Marsh v. Rice, 1 N. H., 167.
Another analogy may be found in the well established doctrine that the widow of a mere trustee is not dowable in equity of the trust estate. All these cases rest upon the general principle, that the estate must be acquired by the warrantor or husband, in fact and substance as his own property, without intervening rights in third parties, and not as mere trustee for another’s use, or as a mere conduit of title. Whilst the law is careful to see that an after acquired title, purchased and paid for by the warrantor shall enure, it is equally careful to guard against any unequitable result by enforcing the rule, where the substance is wanting and the rights of others are impaired.
The complainant contends that the trust is not sustained, because, she says, the whole consideration of the transfer did not come from Hill.
It was decided in some of the earlier cases that, unless the *468whole consideration moved from one person, no implied trust would arise. But this doctrine has been repudiated. It is now held that such a trust may arise where several persons furnish the money, if the portions of each can be defined clearly. But where this is uncertain, and no satisfactory evidence is offered, showing the portion of each, no trust can be established. Baker v. Vining, 30 Maine, 121.
The same case also clearly states the foundation of the rule as to implied trusts to be payment of the money. It raises a trust to the extent of that payment, if the same was due and rightfully paid — but not beyond this.
The proof in the case shows that the amount actually paid by Hill at the time of the assignment was $4614^^, the consideration named in the assignment to Jenness was $5138. On examination of the evidence, we are satisfied that Jenness and others had paid to Blake certain sums amounting to $1700 — which had not been indorsed on the note. There was an understanding, not very definite, that some extra interest or consideration for delay should be paid or allowed B.lake, and he held this sum to await a settlement. It was arranged, as Mr. Blake testifies, that he should retain these sums amounting to $1700, but as this sum exceeded by more than $500, what was finally fixed upon as his extra, he would take and did take of Jenness, the sum of $4614XW By this arrangement the $500 (more or less) was deducted from the amount due on the mortgage.
It is clear that the whole $1700 was paid to Blake towards the mortgage debt, and the understanding as to extra interest. This was paid by Jenness, or those interested to pay it. The $500 balance at least should have been indorsed on the note, for it was paid in on that debt, and it was admitted that at most but $1100 of the $1700 was required "to protect the extra interest,” leaving $500, more or less, to be appropriated towards the principal and legal interest. Blake agreed to consider it as a payment and received the sum apparently due, less this sum of $500. We can see no differ*469ence in effect, if lie had actually indorsed the amount on. the note.
It will not be disputed, that if Jenness had paid all the debt, except one hundred dollars, and Hill had paid this $100 to Blake, and to Jenness the seven or eight thousand dollars which had been before paid by him, that no implied trust on an assignment to Jenness would arise, beyond the one hundred dollars. As between Kelley and Jenness, as we have seen, it was Jenness’ duty to pay all the debt. Whatever he did pay in fact on this note to Blake was a payment for the benefit of Kelley. If Hill did afterwards pay Jenness the five hundred dollars, it gave him no right against Kelley. It is the same in effect as if he had paid to Jenness the amount of any prior payments made years before, to Blake. What had been paid by Jenness or others on the note before assignment, which Blake was bound to account for as payment, was fixed in favor of Kelley, and must be accounted for, and no resulting trust as to such payments could arise in favor of Hill. Whether any more than the balance of $500 of the $1700 should be allowed as payment on the note, we are not now called upon to determine.' If any question on this point is made, it may be determined on the coming in of the master’s report.
It being admitted that the complainant has a right to redeem, a decree to that effect may be entered. The case will be referred to a master to determine the amount duo on the principles before stated, unless the parties can agree upon the sum. The complainant is entitled to costs.
Appleton, C. J., Eioe, Cutting, Davis and Walton* JJ., concurred.