THE PEOPLE . COUNTY OFFICERS OF ST. CLAIR.

the bond required to be given on account of the removal of the county seat"-in other words, to determine whether the guarantees that should be offered were "suitable." This resolution does not appear to have been passed by a two-thirds majority of the board, and consequently can not have the effect to modify the effect of the original resolution passed, and required to be passed by such two-thirds majority. Hence, this second resolution referring the matter to a committee, must stand, if it can stand at all, as a mere naked delegation of the authority of the board, given by a simple majority. This was not a committee appointed for the mere purpose of inquiring and reporting to the board for its future action, but for the purpose of definitely and finally exercising upon this question the whole power possessed by the board itself. We think it clear that it was incompetent for the board thus to delegate this power; (Hascall et al. v. Madison University, 8 Barb. 174 Thompson v. Schermerhorn, 2 N. Y. 92), and that no action which the committee could take under the resolution could determine the question of the sufficiency of the guarantees under the original resolution. Hence, notwithstanding the approval and acceptance of the bond by them, the original resolution remained still conditional as when it was first passed, and that nothing short of a resolution, passed by a two-thirds majority of the board, could decide the question, or dispense with the condition. There was no subsequent action of the board upon the question.

Hence, the resolution for removing the county seat, or designating the place to which it was to be removed, remained conditional at the time the question was submitted to the vote of the electors without any condition. The vote of the electors was, therefore, unauthorized, and of no validity.

The decree of the court below, sustaining the demurrer

JACKSON v. CLEVELAND.

and dismissing the bill, must be reversed, and the defendants have leave to answer.

The record must be remitted to the court below for further proceedings.

The other Justices concurred.

Jabez H. Jackson and others v. Joseph H. Cleveland and others.

Voluntary deed: Resulting trust, when not created. A husband and wife being about to separate, certain property was, at the husband's instance, (in order to avoid questions of dower,) conveyed to a third person by a deed in fee simple, absolute in form, and purporting to be upon a valuable consideration. Held, that the absence of consideration in fact was not sufficient without fraud, mistake or contrivance, to raise any resulting trust in favor of the grantor.

A voluntary deed, intentionally and deliberately made, is good against the grantor and his heirs, and can only be avoided by creditors or others having superior equities to the grantee. The rule which has been sometimes applied, raising trusts in favor of the grantor in a voluntary deed, was technical, and could not apply when a valuable consideration was recited, or beneficial uses in favor of the grantee were expressed in the deed.

Where a deed has been recorded, and acted upon by the mutual concurrence of grantor and grantee, that amounts to a delivery, and the fact that it was originally made without the knowledge of the latter, and not manually delivered to him, is of no importance.

Heard April 21st and 24th. Decided November 10th.

Appeal in Chancery from Lenawee Circuit.

This was a bill filed by complainants as heirs at law of Jacob Jackson, deceased, to obtain a re-conveyance of certain premises conveyed by said Jackson, in his life time, to Joseph H. Cleveland, and by him conveyed to other defendants.

The bill was dismissed, on the hearing.

The facts are stated in the opinion.

JACKSON . CLEVELAND.

G. V. N. Lothrop, for complainants.

1.

The evidence shows, beyond any fair controversy, that Jackson, for his own convenience, use and benefit, made the deed to Cleveland, and that no gift or benefit to Cleveland was intended. And if oral declarations are admissible, it is clear that it was only long after Jackson's death that Cleveland formed the knavish plan of claiming the land for his own use.

The heirs of Jackson claim that this is a constructive

trust, or one by operation of law. It is certainly such, morally. What is there to prevent it from being so regarded and enforced in a court of equity?

By our statute of uses and trusts, "trusts arising or resulting by implication of law," are left as they stood before the statute, except, that in the case of a deed on a consideration paid by a person other than the grantee, no trust arises in favor of the person paying the consideration. Comp. L. § 2636.

So our statute of frauds, requiring interests in land to be created by writing, expressly excepts trusts arising "by implication or operation of law."-Comp. L. §3178.

There is, then, nothing in these statutes which affect this case.

2. From the text books, I think no one would suspect that there was any doubt on this question. They state it as a settled proposition that where a conveyance is wholly voluntary, and the cotemporaneous facts clearly show that no gift or other benefit to the grantee was intended, but only a benefit to the grantor, then a trust to the grantee would be implied.

Some of the writers state the law in stronger terms; but they are all authority for the position as above stated. 1 Cruise, Dig. 468, 2 Am. Ed.

Judge Story declares it "firmly established."-2 Story Eq. Jur. §§ 1198, 1196, 1197, 1200, 1201; 2 Bl. Com. 330; Hill on Trustees, 163, 3d Am. Ed.; 2 Spences Eq. Jur. 449.

JACKSON . CLEVELAND.

The current of English cases is the same way.- Birch v. Blagrave, Amb. 265, 3 Swanst. 585; Cases cited, Hill on Trustees. 164 et. seq.

And the following cases in this country recognize that such constructive trusts may arise under voluntary conveyances 12 Pet. 241; 2 W. & M. 168.

In England there are but two cases that can be cited against this doctrine.

The first is not a decision on the point, but a remark of Lord Hardwick, in which, mentioning two cases of resulting trust, he is reported to have said that he knew of no other.- 2 Atk. 150.

Now, this is, probably, an error of the reporter, for it is incontrovertible that a trust did result on a feoffment without consideration.-2 Atk. 256; 2 Atk.; 4 Russ. 422.

This latter was a case where a son, wishing to raise money on mortgage of property, under advice that his father's better credit would facilitate this, conveyed without consideration to his father. The latter died, leaving a general devise of all his property, and it was held that parol evidence could not be received under the statute of frauds to show a resulting trust.

As to American authorities, see 6 Paige, 358; 20 N. Y. 39; 29 N. Hamp. 129; 36 Id. 86; 38 Id. 382; 2 Grant's cases, 450; 29 Me. 410; 2 Clark (Ia.) 60; 9 Wis. 379; 5 Ohio, St. 196.

Some of these cases, it will be seen, do not sustain the defendants; others, it is conceded, do. But the latter rest chiefly on the ground, that parol evidence can not be admitted in a court of equity to show that a deed does not express the true and the whole intention of parties. But this is certainly not the general rule, and not the rule in this state.

The references already made show that there is no difficulty in our statutes in establishing constructive or resulting trusts by parol.

JACKSON v. CLEVELAND.

Now it is certainly the rule in this state, and generally in a court of equity, that a deed absolute on its face may be shown to have been intended as a mortgage, though this contradicts the very terms of the deed.-12 Mich. 314; 1 John's Ch. 582; 4 Seld. 419; 2 Fairf. 9; 4 Han. & I. 555; 7 Leigh, 566.

These and a multitude of other cases, show that there is no difficulty in a court of equity in showing, by parol, such facts as will raise an implied or constructive trust, even against the express terms of a deed.

If the facts offered in evidence tend to show such a trust as equity will recognize and enforce, then they are admissible, though offered by parol. They can only be excluded by taking the broad ground, that if proven they would not make a case of trust by operation of law.

What we insist upon, is that parol evidence of facts, which will show a trust or confidence in the transactions, may, in cases like the one before the court, be given in evidence. These stand on an entirely different ground from subsequent admissions or declarations.-Hill on Trustees, 165, and cases cited, 3d Am. Ed.

3. The defendant Williamson claims that he was a bona fide purchaser without notice. But the complainants held. actual possession through Nichols, claiming their equities. Williamson purchased subject to the equities of complainants.-Walk. Ch. 79, 260.

And mere notice before actual payment is enough.— Walk. Ch. 117; 5 Mich. 408; 6 Id. 134; 12 Barb. 605; 29 Id. 505; 2 Sumn. 486.

I am aware that this court has held this rule not to apply where the grantor himself remained in possession. 8 Mich. 405. But I submit that this limitation is personal to the grantor himself. And it does not apply to those in possession claiming by subsequent grant or by descent.

The following authorities, though not directly in point, have a bearing.-4 Barr. 173; 6 Maine, 256; 7 Id. 464.