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PRESUMED RESULTING TRUSTS, INTENTION AND DECLARATION

Published online by Cambridge University Press:  07 March 2014

John Mee
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Abstract

Rejecting the competing positions of Swadling and Chambers, this article argues that the law of presumed resulting trusts reflects a very old rule that, upon a voluntary transfer, the fate of the beneficial interest in the property depends on the intention of the transferor. The case law shows that the presumption is of an intention to create a trust for the transferor or provider of the purchase money. It makes no difference if, reflecting the historically important concept of “retention”, this is phrased in negative terms as a presumption that the intention of the transferor was not to pass the beneficial interest to the transferee.

Keywords

resulting trustspresumptionsequitylegal historydeclarationintentionrestitution
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Articles
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The Cambridge Law Journal , Volume 73 , Issue 1 , March 2014 , pp. 86 - 112
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Copyright © Cambridge Law Journal and Contributors 2014 

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References

1 See An Introduction to the Law of Restitution, revised ed. (Oxford 1989), esp. pp. 54–73; “Restitution and Resulting Trusts” in S. Goldstein (ed.), Equity and Contemporary Legal Developments (Jerusalem 1992). See also “Trusts Raised to Reverse Unjust Enrichment: The Westdeutsche Case” [1996] R.L.R. 3; Unjust Enrichment, 2nd ed. (Oxford 2005), esp. pp. 150–152 and 304–307.

2 Oxford 1997. See also Chambers, R. “Resulting Trusts in Canada” (2000) 38 Alberta Law Review 378Google Scholar; R. Chambers “Resulting Trusts' in A. Burrows and Lord Rodger (eds.), Mapping the Law: Essays in Memory of Peter Birks (Oxford 2006); R. Chambers “Is There a Presumption of Resulting Trust?” in C. Mitchell (ed.), Constructive and Resulting Trusts (Oxford 2010).

3 “A New Role for Resulting Trusts?” (1996) 16 Legal Studies 110.

4 Ibid., 113. See also the reference in his conclusion to “a presumption of actual intent”: ibid., at p. 131.

5 Ibid., at p. 114.

6 [1996] A.C. 669.

7 Ibid., at p. 689.

8 “Explaining Resulting Trusts” (2008) 124 L.Q.R. 72. See also by the same author: “The Law of Property” in P. Birks and F. Rose (eds.), Lessons of the Swaps Litigation (London 2000); “A Hard Look at Hodgson v Marks” in P. Birks and F. Rose (eds.), Restitution and Equity Volume 1: Resulting Trusts and Equitable Compensation (London 2000); “Legislating in Vain” in A. Burrows, D. Johnston and R. Zimmerman (eds.), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford 2013). Note also the contributions to the debate by other scholars, including C. Rickett and R. Grantham, “Resulting Trusts— A Rather Limited Doctrine” in Restitution and Equity Volume 1; C. Mitchell, “Review of Understanding Unjust Enrichment, by Jason W. Neyers, Mitchell McInnes and Stephen G.A. Pitel (eds.)” (2005) 42 Can. Bus. L.J. 143; E. O'Dell, “The Resulting Trust” in C. Rickett and R. Grantham (eds.), Structure and Justification in Private Law: Essays for Peter Birks (Oxford 2008); J. Penner, “Resulting Trusts and Unjust Enrichment: Three Controversies” in C. Mitchell (ed.), Constructive and Resulting Trusts (Oxford 2010); Sheehan, D., “Resulting Trusts, Sine Causa and the Structure of Proprietary Restitution” (2011) 11 Oxford University Commonwealth Law Journal 1CrossRefGoogle Scholar; G. Virgo, The Principles of Equity and Trusts (Oxford 2012), 245–250; 262–265. See also Glister, J., “Is There a Presumption of Advancement?” (2011) 33 Sydney Law Review 39Google Scholar.

9 A presumption of resulting trust arises in favour of a person who makes a voluntary transfer of personal property to another in circumstances where the countervailing presumption of advancement does not apply. “Voluntary” in this context means gratuitous and appears to include a transfer for nominal consideration: Hayes v Kingdome (1681) 1 Vern. 33, 34; Sculthorp v Burgess (1790) 1 Ves. Jun. 91, 92. It seems that no presumption arises in the context of a voluntary conveyance of land and, in fact, the better view appears to be that no resulting trust (of the relevant type) can arise in this situation: see Law of Property Act 1925, s. 60(3); J. Mee, “Resulting Trusts and Voluntary Conveyances of Land” [2012] Conv. 307 and see also text to note 126 below. Note, however, Prest v Petrodel Resources Limited [2013] UKSC 34; [2013] 2 A.C. 415, at [49] where Lord Sumption (with whose reasoning the other Justices of the Supreme Court agreed) apparently assumed that the presumption of resulting trust applies in the case of a transfer of land for nominal consideration. Unfortunately, no authorities were cited, nor was there any mention of Law of Property Act 1925, s. 60(3).

10 As stated in the leading case of Dyer v Dyer (1788) 2 Cox 92, 93 per Eyre C.B.: “the trust of a legal estate... results to the man who advances the purchase money” irrespective of who takes the legal title. Note that the Supreme Court of Canada has recently declined an invitation to discard the purchase money resulting trust doctrine in favour of an approach based on unjust enrichment: Nishi v Rascal Trucking Ltd., 2013 SCC 33.

11 “Explaining Resulting Trusts”, at p. 102. This category of resulting trust arises in favour of a settlor who creates a trust that fails to dispose of the entire beneficial interest. The term “automatic” derives from the judgment of Megarry J. in Re Vandervell's Trusts (No 2) [1974] Ch. 269, 294.

12 See Chambers, “Is There a Presumption of Resulting Trust?”, at p. 280; Penner, “Resulting Trusts and Unjust Enrichment: Three Controversies”, e.g. at pp. 253–255.

13 Chambers also identifies a number of atypical situations which, he contends, lead to presumed resulting trusts that can only be explained on the basis of his model: see, in particular, Resulting Trusts, pp. 21–27. In the view of the current author, the authority relied upon by Chambers is not convincing and cannot plausibly be said to have altered the courts' conception of the presumption of resulting trust. Two of the main authorities upon which Chambers' relies are addressed in this article: Re Vinogradoff [1935] W.N. 68 (see text to notes 84–85) and Hodgson v Marks [1971] Ch. 892 (see text to notes 118–124). Note also the brief comment on Ryall v Ryall (1739) 1 Atk. 59 in note 72 below, the reference to Brown v Brown (1993) 31 N.S.W.L.R. 582 (C.A.). in note 78 below, and the discussion in Mee, “‘Automatic’ Resulting Trusts: Retention, Restitution or Reposing Trust?”,’ in C. Mitchell (ed.), Constructive and Resulting Trusts (Oxford 2010), pp 224–229. Note that Chambers now argues that the presumption of resulting trust is not actually a true presumption:“Is There a Presumption of Resulting Trust?”, at pp. 284–287.

14 “Explaining Resulting Trusts”, at pp. 97–98.

15 [1971] AC 886.

16 On the common intention constructive trust, see e.g. Gardner, S., “Family Property Today” (2008) 124 L.Q.R. 422Google Scholar; K. Gray and S. Gray, Elements of Land Law 5th ed. (Oxford 2009), 871–905; J. Mee “Jones v Kernott: Inferring and Imputing in Essex” [2012] Conv. 167; G. Virgo, The Principles of Equity and Trusts (Oxford 2012), 321–339.

17 [2011] UKSC 53; [2012] 1 A.C. 776. Note also Prest v Petrodel Resources Limited [2013] 2 A.C. 415, [49] per Lord Sumption, referring to “the ordinary presumption of equity that [the recipient of a gratuitous transfer] was not intended to acquire a beneficial interest in” the properties transferred.

18 [2012] 1 A.C. 776, at [8].

19 [2007] UKHL 17; [2007] 2 A.C. 432.

20 Ibid., at [23].

21 [1996] 1 F.L.R. 826.

22 Ibid., 827, quoted by Lord Walker in Stack [2007] 2 A.C. 432, at [29].

23 [1996] A.C. 669.

24 [1996] A.C. 669, 708. Note also his less orthodox comment (ibid.), seeming to indicate the influence of the common intention constructive trust doctrine, that resulting trusts “are traditionally regarded as examples of trusts giving effect to the common intention of the parties”.

25 [1967] 2 A.C. 291.

26 Ibid., 312 (“it is a question of the intention of [the transferor]”). Note also the emphasis on intention in Shephard v Cartwright [1955] A.C. 431, 446–450 per Viscount Simonds; 454 per Lord Reid. See also Pettitt v Pettitt [1970] A.C. 777, 815F–G per Lord Upjohn; 823G–824D per Lord Diplock; Gissing v Gissing [1971] A.C. 886, 902B–C per Lord Pearson.

27 “Explaining Resulting Trusts”, at p. 82.

28 (1875) L.R. 10 Ch. App. 343.

29 “Explaining Resulting Trusts”, at p. 81. Note the discussion of this argument by Penner, “Resulting Trusts and Unjust Enrichment: Three Controversies”, pp. 250–251.

30 (1875) L.R. 10 Ch. App. 343, 353.

31 (1676) 3 Swan. 585.

32 At the time of Cook v Fountain, he was Lord Finch L.C.

33 (1676) 3 Swan. 585, 591. The quote used by Swadling, “Explaining Resulting Trusts”, at p. 80 begins with the words “appear either by direct and manifest proof” in the middle of this passage and Swadling italicises the words “presumes there was a declaration”.

34 Swadling, “Explaining Resulting Trusts”, at p. 74, quoting Murphy J. in Calverley v Green (1984) 155 C.L.R. 242, 264 (H.C.A.).

35 M. Macnair, “Coke v Fountaine (1676)” in C. Mitchell and P. Mitchell (eds.), Landmark Cases in Equity (Oxford 2012). Note also M. Macnair, The Law of Proof in Early Modern Equity (Berlin 1999).

36 Macnair “Coke v Fountaine”, at p. 58.

37 Ibid., at p. 52.

38 “Explaining Resulting Trusts”, at p. 80.

39 See Cook v Fountain (1676) 3 Swan. 585, 593–4.

40 Macnair, “Coke v Fountaine”, at p. 59, citing Warman v Seaman (1674) 1 Freeman 306. Note also the later case of Pilkington v Bayley (1778) 7 Bro. Parl. Cas. 383 (H.L.).

41 Macnair, “Coke v Fountaine”, at p. 59. See also ibid., at p. 52, referring to D.E.C. Yale's discussion of the idea of terms attendant upon the inheritance in his introduction to the second volume of Lord Nottingham's Chancery Cases, (1961) 79 Selden Society, pp. 150–160.

42 (1676) Rep. temp. Finch 270; Lord Nottingham's Chancery Cases, (1961) 79 Selden Society, Case 347 (sub nom Okeover v Lady Pettus).

43 See (1676) 3 Swan. 585, 592–593 per Lord Nottingham.

44 See Yale's discussion of this case in (1961) 79 Selden Society, pp. 102–103. Note also that, in Cook v Fountain (1676) 3 Swan. 585, 592, Lord Nottingham seems to place the purchase money resulting trust in the category of “implied trusts”, with “presumptive trusts” being in the other category of “express trusts”.

45 Macnair, “Coke v Fountaine”, at p. 58.

46 Ibid., at p. 53.

47 Ibid., at p. 59, referring back to pp. 51–53.

48 Ibid., at p. 35.

49 Note also Penner's point that the claimant has often succeeded in establishing a beneficial interest in the family home, under what he describes as a resulting trust, in modern family cases where it was accepted that there had been no express discussion between the parties (and therefore no express declaration of trust): “Resulting Trusts and Unjust Enrichment: Three Controversies”, at pp. 253–257. This point is complicated by the influence in these cases of the common intention constructive trust.

50 “Explaining Resulting Trusts”, at p. 81ff.

51 Note, for example, the ancient rule that a conveyance of land without special words of limitation would pass a life estate, rather than a fee simple. This rule survived from early feudal times until its abolition by Law of Property Act 1925, s. 60(1).

52 E. Coke, Institutes of the Lawes of England; or, a Commentary upon Littleton 4th ed. (London 1639) 23a.

53 W.H. Rowe (ed.), The Reading Upon the Statute of Uses of Francis Bacon (London 1804), editor's note 134 to p. 62: “uses were grown to such a familiarity that men could not think of possession but in course of use”. See further N. Jones, “Uses, Trusts and a Path to Privity” [1997] C.L.J. 175, 178–182; N. Jones, “Trusts in England after the Statute of Uses: A View from the 16th Century”, in R. Helmholz and R. Zimmermann (eds.), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (Berlin 1998) pp. 190–192.

54 See Mee, “‘Automatic’ Resulting Trusts: Retention, Restitution or Reposing Trust?”, at p. 214ff; N. Jones, “Uses and ‘Automatic’ Resulting Trusts of Freehold” [2013] C.L.J. 91, 94–98.

55 T.F.T. Plucknett and J.L. Barton (eds.), C. St Germain Doctor and Student (1974) 91 Selden Society, Second Dialogue, ch. 22 [54b]; the spelling in the above quotation has been modernised.

56 A.W.B. Simpson, A History of the Common Law of Contract (Oxford 1987), 344.

57 Modern judges and commentators have emphasised the difficulties in principle with the proposition that a person who creates a trust in his or her own favour “retains” the equitable title: Westdeutsche Landesbanke Girozentrale v Islington London Borough Council [1996] A.C. 669, 706 per Lord Browne-Wilkinson; Chambers, Resulting Trusts, at pp. 51–55; Swadling, “Explaining Resulting Trusts”, at pp. 99–100; see also Jones, “Uses and ‘Automatic’ Resulting Trusts”, at pp. 112–114. However, the existence of these difficulties does not mean that the courts did not think in this way in the past. If the courts have built the rules on resulting trusts around “retention”, a concept which does not stand up to principled analysis, this means that the relevant rules are indefensible in principle, not that they somehow have always had a different basis.

58 J.H. Baker, The Oxford History of the Laws of England: Vol VI 1483–1558 (Oxford 2003), 675.

59 On this meaning of consideration, see Simpson, A History of the Common Law of Contract, at pp. 329–332. Compare the discussion in State Revenue v Dick Smith Electronics (2005) 221 C.L.R. 496, [22]–[29], [71]–[77] (consideration as “that which moves the transaction”).

60 Ibid., at p. 373.

61 Ibid., at p. 338 n. 2.

62 Anon (1535) Benl. 16.

63 W.H. Rowe (ed.), The Reading upon the Statute of Uses of Francis Bacon (London 1804), 22.

64 Ibid.

65 A.W.B. Simpson, A History of the Land Law 2nd ed. (Oxford 1986), 182.

66 Baker, The Oxford History of the Laws of England: Vol. VI, at p. 653, citing Anon (1549) Wm Yelv. 346, No. 72. See also Sir Edward Clere's Case (1599) 6 Co. Rep. 17b, 18a: “a feoffment to the use of his will, and to the use of him and his heirs is all one”.

67 Compare Jones “Uses and ‘Automatic’ Resulting Trusts”, fn. 56 on pp. 98–99.

68 [1967] 2 A.C. 291.

69 Ibid., 314.

70 Ibid., 312. The last six words of this passage, and Lord Upjohn's clear approval (ibid., 313) of the decision of Bacon V.-C. in Re Curteis' Trusts (1872) L.R. 14 Eq. 217, raise wider questions as to the basis for the creation of trusts, other than resulting trusts, upon a voluntary transfer of property. Unfortunately, it is not possible to pursue these issues in the present article.

71 See also Lavelle v Lavelle [2004] EWCA Civ 223; [2004] 2 F.C.R. 418, [13] per Lord Phillips M.R.: “Where one person, A, transfers the legal title of a property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on his intention”.

72 Resulting Trusts, pp. 21–27. One scenario discussed by Chambers involves cases of “ignorance”, where e.g. the claimant's money was used without his authorisation in a purchase. In such cases, the intention of the claimant is irrelevant and the facts fall outside the scope of the presumption of resulting trust, which is a presumption as to the intention motivating a claimant who (himself or herself) makes a voluntary transfer or “in the character of a purchaser” (Davies v National Trustees Executors and Agency Co of Australasia Ltd [1912] V.L.R. 397, 401 per Cussen J) pays the purchase price of property. Cases of “ignorance” fall to be dealt with under tracing principles. A link between tracing and resulting trusts was suggested in the early case of Ryall v Ryall (1739) 1 Atk. 59, 60 per Lord Hardwicke but this line has not been followed in the later case law (as Chambers implicitly accepts in Resulting Trusts, pp. 22–23).

73 [1955] A.C. 431 (H.L.).

74 Ibid., 451.

75 Ibid., 452.

76 (1857) 3 Sm. & G. 403.

77 [1953] Ch. 728, 765 per Romer L.J.

78 See e.g. Dullow v Dullow (1985) 3 N.S.W.L.R. 531 (C.A.). In practice, in a difficult case it may make a difference which presumption is applicable: see Brown v Brown (1993) 31 N.S.W.L.R. 582 (C.A.).

79 [1955] A.C. 431, 452.

80 This expression was used by counsel in argument in Shephard ibid., 439.

81 Ibid., 451–452. The ultimate decision of the House of Lords was that the transactions at issue were gifts.

82 (1875) L.R. 10 Ch. App. 343, 351.

83 Ibid., 351 per James L.J.

84 [1935] W.N. 68.

85 The actual result in Vinogradoff was that the resulting trust was not confined to the lifetime of the transferor, who was held to be absolutely entitled under a resulting trust. Chambers argues (Resulting Trusts pp. 25–26) that his view of resulting trusts better explains this result, since it was improbable that the transferor intended to make the niece a trustee. It would not be much of a recommendation for Chambers' theory if it could be said to justify “atrocious” (see J. Penner, The Law of Trusts 8th ed. (Oxford 2012) p. 119) outcomes such as that in Re Vinogradoff. In any event, it is no more probable that the aunt “did not intend to benefit” the child than that the aunt intended to make the child a trustee. The problem with the decision on the facts is that it is clear that the aunt intended to confer a benefit on the child (upon the aunt's death).

86 Lavelle v Lavelle [2004] 2 F.C.R. 418, [13] per Lord Phillips M.R.

87 The precise parameters of the presumption of advancement need not be discussed in detail here. The abolition of the presumption of advancement was envisaged by Equality Act 2010, s.199 but this provision has not been brought into force. See generally Glister, J., “Section 199 of the Equality Act 2010: How Not to Abolish the Presumption of Advancement” (2010) 73 M.L.R. 807CrossRefGoogle Scholar.

88 (1875) L.R. 20 Eq. 328.

89 (1875) L.R. 10 Ch. App. 343.

90 (1875) L.R. 20 Eq. 328, 331. The focus on the motivation behind the transfer reflects the rule originally developed in the context of resulting uses. See also Christy v Courtenay (1850) 13 Beav. 96, 99 where Lord Langdale M.R. looked to determine “the character of the transactions, at the time they took place” or, in other words, to assess “what, at the time of these transactions, the father meant to do”; and Sayre v Hughes (1868) L.R. 5 Eq. 376, 382 where Sir John Stuart V.-C. stated that the property had been transferred “and the question is, for what purpose?”

91 (1875) L.R. 20 Eq. 328, 329.

92 Fowkes v Pascoe (1875) L.R. 10 Ch. App. 343, 352 per Mellish L.J.

93 (1985) 3 N.S.W.L.R. 531.

94 Ibid., 535 per Hope J.A.; Kirby P. and McHugh J.A. concurring. See also Benger v Drew (1721) 1 P. Wms 781, 781 per Lord Macclesfield: transferee “is in equity to be intended but as a trustee for [those] by whom the purchase money was advanced”; Re Kerrigan (1946) 47 S.R. (N.S.W.) 76, 81 per Jordan C.J.: “It has long been established that if a person buys property real or personal, and causes the title which he so acquires to be vested in another, a court of equity, in the absence of evidence of contrary intention on the part of the buyer, raises, and gives effect to, a presumption that the buyer intended the other to hold the beneficial title in trust for the buyer, and so creates a resulting trust.”

95 (1818) 1 Swan. 13.

96 Ibid., 18 (emphasis supplied). See also Standing v Bowring (1885) 31 Ch. D. 282 which involved a voluntary transfer of stock into the joint names of the transferor and her godson. The transferor sought to establish that she was absolutely entitled to the stock under a resulting trust (and not merely entitled to the exclusion of the godson during her lifetime). Lindley L.J. stated (ibid., 289) that “it is impossible to impose such a trust on the Defendant, when the evidence conclusively shews that [the transferor] never intended to create any trust of the kind.” He went on to insist that: “[t]rusts are neither created nor implied by law to defeat the intentions of donors or settlors; they are created or implied or are held to result in favour of donors or settlors in order to carry out and give effect to their true intentions, expressed or implied.”

97 (1840) 2 Beav. 447. See also Shales v Shales (1701) 2 Freem. 252, 252–253 per Wright L.K.; Finch v Finch (1808) 15 Ves. Jun. 43, 52 per Lord Eldon; Jeans v Cooke (1857) 24 Beav. 513, 520–521 per Sir John Romilly M. R.; Christy v Courtenay (1850) 13 Beav. 96, 98–99, 101 per Lord Langdale M.R.; Beecher v Major (1865) 2 Dr. & Sm. 431, 435–437 per Kindersley V.-C.; Sayre v Hughes (1868) L.R. 5 Eq. 376, 382–383 per Sir John Stuart V.-C.; Chettiar v Chettiar [1962] A.C. 294, 302 (P.C.) per Lord Denning; Re Bishop [1965] Ch. 450, 459G–460B; 460G–461A; 463D–E; 463G–464A per Stamp J.

98 (1840) 2 Beav. 447, 454.

99 Ibid.

100 Ibid., 455.

101 Ibid., 456.

102 Ibid., 457.

103 Scott v Pauly (1917) 24 C.L.R. 274, 281 (H.C.A.) per Isaacs J.: “No doubt, when all the circumstances are before the Court, the intention of the purchaser to make or not to make the holder of the title trustee is to be determined as a question of fact.”

104 See Shephard v Cartwright [1955] A.C. 431, 454 per Lord Reid.

105 Resulting Trusts, p. 19.

106 Ibid.

107 Ibid.

108 Compare T.H. Tey, “Resulting Trusts in Singapore” (2011) 23 Singapore Academy of Law Journal 607, 612, suggesting that “Singapore judges … haphazardly endorse more than one doctrinal basis within a single decision”.

109 The language used will also be affected by whether the court is describing the basis of presumed resulting trusts only or is attempting to encompass “automatic” resulting trusts as well. Unlike presumed resulting trusts, automatic resulting trusts cannot be said to turn on an intention on the part of the transferor to create a trust for himself. Note that the statement by Lord Millett in the Privy Council in Air Jamaica v Charlton [1999] 1 W.L.R. 1399, 1412 that the resulting trust “responds to the absence of any intention on his part to pass a beneficial interest to the recipient” was made in the context of an automatic resulting trust case. For the present author's position on automatic resulting trusts, see J. Mee “‘Automatic’ Resulting Trusts: Retention, Restitution or Reposing Trust?”

110 [2004] 2 F.C.R. 418.

111 Ibid., at [14].

112 For another example, see Sayre v Hughes (1868) L.R. 5 Eq. 376, 382 per Sir John Stuart V.-C.: “Did she intend the daughter to be a trustee for her? There seems to be no rational motive for that .… and therefore I cannot presume that no benefit to her daughter was intended.”

113 (1995) 184 C.L.R. 538.

114 J. Edelman and E. Bant, Unjust Enrichment in Australia (South Melbourne 2006), 60.

115 Quoted (1995) 184 C.L.R. 538, 586–587 by Toohey J. See also e.g. ibid., 545 and 549 per Deane and Gummow JJ.

116 Ibid., 546 per Deane and Gummow JJ. See also ibid., 571 per Deane and Gummow JJ. and note ibid., 599 per McHugh J.: “her proven intention to retain the beneficial interest … gave rise to a resulting trust”.

117 There are parallels between Nelson and Martin v Martin (1959) 110 C.L.R. 297 (H.C.A.). In Martin, the first instance judge had held that the husband “did not intend that his wife should have the beneficial ownership of the land” he had purchased in her name. In the next sentence after noting this finding (ibid., 303), the judgment of the High Court of Australia (Dixon C.J.; McTiernan, Fullagar and Windeyer JJ.) stated that “[i]t was of course for [the husband] to make out positively that his wife did not take the land beneficially but as a trustee for him”. The judgment goes on to state (ibid., 304) that “[t]he burden of proof is firmly placed upon the person asserting that a trust was intended but the issue depends upon the intention with which the property was purchased”.

118 [1971] Ch. 892.

119 See e.g. Resulting Trusts, at p. 25, p. 44, p. 101.

120 Ibid., 933F–G per Russell L.J. (Buckley and Cairns LJJ. concurring).

121 Ibid., 933.

122 Ibid.

123 Ibid.

124 The current author does not suggest that all aspects of Russell L.J.'s brief discussion of resulting trusts can be reconciled with principle. For example, the learned judge appears to have misunderstood the effect of section 53(1)(b) in the context of an oral declaration of trust over land and his idea (ibid., 933) that an express trust can fail for “lack of form” (triggering a resulting trust in the same way as if the express trust had failed for uncertainty or perpetuity) has been convincingly criticised by W. Swadling, “A Hard Look at Hodgson v Marks” in P. Birks and F. Rose (eds.), Restitution and Equity, Volume 1 (London 2000), 69–73.

125 “Is There a Presumption of Resulting Trust?” p. 280.

126 See the detailed discussion in Mee, J., “Resulting Trusts and Voluntary Conveyances of Land, 1674–1925” (2011) 32 Journal of Legal History 215; Lloyd v Spillet (1740) 2 Atk. 148, 150; (1740) Barn. Ch. 384, 387–8Google Scholar per Lord Hardwicke (“since the Statute of Frauds … there could be no such resulting trust”); Young v Peachy (1741) 2 Atk. 254; Fowkes v Pascoe (1875) L.R. 10 Ch. App. 343, 348 per James L.J.; Pink v Pink [1912] 2 Ch. 528, 536–537 per Farwell L.J., explaining as inaccurately phrased a dictum to the contrary by Jessel M.R. in Strong v Bird (1874) L.R. 18 Eq. 315, 318. Note also J. Mee, “Resulting Trusts and Voluntary Conveyances of Land” [2012] Conv. 307, arguing that Law of Property Act 1925, s. 60(3) was drafted on the basis of this view of the law and that its purpose was to eliminate the possibility that a resulting use might arise upon a voluntary conveyance of land.

127 M. Macnair, The Law of Proof in Early Modern Equity (Berlin 1999), 163. The line of cases to which he refers, which also suggested that the Statute of Frauds prevented the tracing of money into land, is Kirk v Webb (1698) Prec. Ch. 84; Newton v Preston (1699) Prec. Ch. 103; Kinder v Miller (1701) Prec. Ch. 171; Halcott v Markant (1701) Prec. Ch. 178; Shales v Shales (1701) 2 Freem. 252; Skett v Whitmore (1705) 2 Freem. 280.

128 Note that, as discussed in Part V below, in the purchase money situation an express declaration of trust by the provider of the purchase money would not be sufficient in itself to create a trust of the land purchased in the name of a third party because the provider of the money was never the legal owner of the land. It is only by a process of “implication or construction of law” that a trust can be said to arise in favour of the provider of the money on the basis that he or she is the real purchaser and his or her intention should govern the question of ownership in equity.

129 T. Lewin, A Practical Treatise on the Law of Trusts and Trustees, 1st ed., (London 1837), 222–224.

130 “Explaining Resulting Trusts”, at p. 80.

131 W. Swadling,“Property” in A. Burrows (ed.), English Private Law, 3rd ed. (Oxford 2013), 215.

132 [1974] Ch. 269, 294, quoted in “Explaining Resulting Trusts”, at p. 80. See also, taking the same view on the insufficiency of intention to create a (non-restitutionary) trust, R. Chambers, “Is There a Presumption of Resulting Trust?”, at p. 279.

133 [1974] Ch. 269, 289.

134 [1967] 2 A.C. 291.

135 Megarry J. also noted ([1974] Ch. 269, 294) that his propositions “are the broadest of generalisations, and do not purport to cover the exceptions and qualifications that doubtless exist”.

136 Ibid.

137 Stone, H.F., “The Nature of the Rights of the Cestui Que Trust” (1917) 17 Columbia Law Review 467, 474CrossRefGoogle Scholar.

138 Alexander, G.S., “The Transformation of Trusts as a Legal Category, 1800–1914” (1987) 5 Law and History Review 303, 329CrossRefGoogle Scholar.

139 Jones v Lock (1865) 1 Ch. App. 25, 28 per Lord Cranworth (“some decisions, unfortunate I must think them”).

140 (1811) 18 Ves. Jr. 140.

141 See generally, Alexander, “The Transformation of Trusts as a Legal Category”, at pp. 328–332; Ryan, K.W., “Equity and the Doctrine of Consideration” (1964) 2 Adelaide Law Review 189, 199–201Google Scholar.

142 See Simpson, A History of Common Law of Contract, at p. 348ff.

143 The rule can still be seen as radical. Note the comment of J. Hackney, Understanding Equity and Trusts (London 1987) 109, writing in the context of personal property: “No other device in the legal system approaches the massive power of these spoken words in Equity: ‘I declare myself trustee of this for you.’”

144 See “Explaining Resulting Trusts”, at p. 102: “the voluntary conveyance and purchase money resulting trusts [arise] because of the operation of a true presumption, the fact proved by presumption being that the transferor declared a trust in his own favour”.

145 W. Swadling, “Legislating in Vain” in A. Burrows, D. Johnston and R. Zimmermann (eds.), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford 2013), 662.

146 [1955] AC 431. See also Sidmouth v Sidmouth (1840) 2 Beav. 447. Compare, in the voluntary transfer context, cases such as Duke of Norfolk v Browne (1697) Pr. Ch. 80; Re Vinogradoff [1935] W.N. 68.

147 Ibid., 445 per Viscount Simonds. The case involved the acquisition of shares upon allotment, which was expressly treated by Viscount Simonds (ibid.) as indistinguishable from the purchase of shares.

148 See the reference by Eyre C.B. in Dyer v Dyer (1788) 2 Cox 92, 93 to a “strict analogy” with the rules on resulting uses upon voluntary conveyances.