a thesis - Institute of Advanced Legal Studies

RESULTING TRUSTS. 103
It does not seem necessary that the deed itself should show
that the purchase-money is advanced in unequal proportions, as
Sir Joseph Jekyll states. Lord Hardwicke gave the rule without
that qualification in Rigden v. Vallier (1751, 2 Yes. at p. 258), and
the fact that the purchase-money was so advanced may be proved
by parol evidence. (Wh. & Tud. L. C. Eq. 7th ed. vol. ii. 958.)
Even though the purchase-money is advanced in equal shares
the purchasers are sometimes tenants in common in equity, as
Lake v. Gibson itself shows. In that case five persons had bought
a piece of land from the Commissioners of Sewers, by whom it
had been conveyed to them jointly. They were held to be
tenants in common in equity, and the survivors trustees for one
of the purchasers who had died, provided that his representatives
paid one-fifth of all moneys expended, on the ground that
the purchase of the land was a partnership undertaking, and
that in partnership the jits accrcsccndi is never allowed. The
Partnership Act, 1890, s. 20, has now made this a statutory rule.
Again, where money is advanced by persons either in equal or
unequal shares, who take a mortgage to themselves jointly, although
the debt and security will at law belong to the survivor, in equity
there will be a tenancy in common, the survivor being a trustee for
the personal representatives of the deceased mortgagees. For,
as Lord Alvanley said in Morlcy v. Bird (1798, 3 Yes. 631),
" equity says it could not be the intention that the interest should
survive. Though they take a joint security each means to lend his
own and to take back his own." The ground for this distinction
between purchases and mortgages is not particularly clear, but it is
settled. (Aveling v. Knipe (1815), 19 Yes. 440; Robinson v.
Preston (1858), 4 K. & J. 505; In re Rowe (1889), 61 L. T. 581.)
Illustrations.
1. A. mortgages land to B. and C. and their heirs in consideration
of an advance of 2,000/., of which B. contributes 1,450/. and
C. 550/. B. dies. On payment off of the mortgage C. is a trustee
for his representatives of 1,450^. and interest. Petty v. Sty ward
(1632), 1 Rep. in Ch. 31.
2. Land is conveyed to five persons and their heirs in consideration
of 5,145/. One of the purchasers contributes 1,025/. towards
this sum, and then dies. The survivors are trustees of one-fifth
of the land for his representatives, on payment of a sum sufficient