a thesis - Institute of Advanced Legal Studies

RESULTING TRUSTS. 93
satisfied without exhausting the property. Eecent illustrations
are Sayre v. Hughes (1868), L. E. 5 Eq. 376 ; Fowkes v. Pascoe
(1875), L. E. 10 Ch. App. 343; Batstonc v. Satter (1875), ibid. 431;
Standing v. Boicring (1885), 31 Ch. D. 282; Coolie v. Smith, (1891)
A. 0. 297 ; and Cumack v. Edwards, (1896) 2 Ch. 679.
It seems that on a voluntary transfer inter vivos of personal
property there is a presumption of a resulting trust in favour of
the transferor. Lord Thurlow evidently thought so (Sculthorp v.
Burgess (1790), 1 Yes. Jun. 91). Sir G. Jessel so decided in
Fowkes v. Pascoe (supra, at p. 345, n.), and in the same case Lord
Justice James "assumed" it, though apparently he felt some
doubt (p. 348), while Lord Justice Mellish treated it as the law
(p. 352). Lastly, Lord Justice Cotton, in Standing v. Souring
(supra, at p. 287), asserted that " the rule is well settled that where
there is a transfer by a person into his own name jointly with that
of a person who is not his child or adopted child, there is prima
facie a resulting trust for the transferor." These authorities seem
to outweigh the one or two opposite dicta. But the presumption
is only a " presumptio hominis " or prima facie rule, and as the
above cases show is not applied if the circumstances evidence an
intention that the transferor is to take the whole beneficial interest.
On the other hand, it has been said that on a voluntary conveyance
of land from A. " unto and to the use of " B. there is no
such presumption of a resulting trust. Lord Hardwicke said in
Young v. Peachey (1741, 2 Atk. at p. 256), " if a trust by implication
was to arise .... it would be to contradict the Statute of
Frauds; for it might be said in every case where a voluntary conveyance
is made that a trust shall arise by implication ; but that is
by no means t/ie rule of the court; trusts by implication or operation
of law arise in such cases where one person pays the purchasemoney
and the conveyance is taken in the name of another, or in
some other cases of that kind; but the rule is by no means so
large as to extend to every voluntary conveyance." Lord Justice
James likewise said in Fowkes v. Pascoe, that there would certainly
not be a trust in such a case. Yet Lord Justice Turner was
strongly of opinion that a trust could be made out notwithstanding
the Statute of Frauds (Childers v. Childers (1857), 1 De GK & J.
at p. 495), and the decisions of the Court of Appeal (James and
Mellish, L. JJ.) in Haigh v. Kaye (1869, L. E. 7 Ch. App. 469),
and of Bacon, Y.-C., in Eudkin v. Dolman (1876, 35 L. T. 791),
seem hardly consistent with Lord Hardwicke's statement of the