that an auctioneer, upon a sale of land by auction, is not such an agent of both parties as to make his entry of the sale operate as a signature of the purchaser contrary to the doctrine esta blished with respect to Sect. 17, as to sales of goods. See Lord Eldon's observations upon this subject in Coles v. Trecothick. See the observations of Sir William Grant, Buckmaster v. Harrop, 7 Vesey, 311, and of Lord Erskine upon appeal, 13 Vesey, 456, and the opinion of Sir Wm. Grant, Higginson v. Clowes, 15 Vesey, 516. In Emmerson. Heelis, 2 Taunt. 38, it was decided that the writing down the name of the purchaser by the auctioneer is a signing by an agent for the purchaser, although for the sale of an interest in land—and this is confirmed by White v. Proctor, 4 Taunt. 209. It does not seem to have been noticed, that at the time of writing down the name it is not intended as the record of a purchase, but only of a bidding. (13) In addition to the preceding notes on this section, it will be proper to advert briefly to the following heads: In Brodie v. St. Paul, 1 Vesey, jun. 326, it was held, that a reference in an agreement to such parts of another paper as had been read to the party was not sufficient. An alteration of an agreement relating to a subject within the statute is as much affected by the statute as original agreement, and requires the same solemnities. Sufficient attention has not always been paid in this respect to the distinction between cases where writing was necessary from the nature of the subject, and those in which it had only been accidentally resorted to in the original agreement.See Cokes . Mascal, 2 Vern, 34.-Jordan v. Sawkins, 1 Ves. jun. 402.-Rich v. Jackson, 4 Bro. Ch. 514.-Robson v. Collins, 7 Vesey, 130. The disallowance of parol evidence, to shew that other terms not expressed were intended to perform part of a written agreement, does not depend so much upen the statute as upon the general rule of law, that parol evidence cannot be admitted to vary the terms of an agreement.-See upon this subject the distinction between cases of a plaintiff requiring the peformance of an agreement different from that expressed, and those of a defendant resisting performance on the ground of fraud or surprise.Young v. Clark, Prec. Ch. 538.-Legal . Miller, 2 Vesey, 376.-Buxton v. Lister, 3 Atk. 383.— Shirley v. Stratton, Bro. Ch. 440.-Stadgroom . Grant, 14 Vesey, 519.-Higginson v. Clowes, 15 Vesey, 516. See also Price v. Dyer, 17 Vesey, 356, in which the original agreement was enforced, notwithstanding a subsequent parol agreement to add other terms in favour of the defendant. In this case most of the authorities upon the subject are referred to. An agreement expressed by letter is sufficient. Moor . Hart, 2 Ch. Rep. 147, 1 Vernon, 110. So a proposal by letter acceded to by parol.-Coleman v. Upcot, 5 Viner, 527. A proposal by letter for a daughter's portion, afterwards retracted and again agreed to by parol.—Bird v. Blosse, 2 Vent. 361. A proposal at first refused but aftewards. Marquis of Townsend, 6 Vesey, 328.-Clarke consented to.---Hodgson . Hutchenson, 5 Viner, 522. This seems to be an incorrect decision, not merely with reference to the statute, but upon general principles-for in ordinary cases a proposal may be retracted at any time before acceptance, and is no longer obligatory after actual refusal. Ruled, that a letter by the defendant to his daughter, whom the plaintiff courted, intimating that he had met the plaintiff and agreed to give him a portion, which letter was not communicated to the plaintiff, was not binding, being no more than a mere communication.-Ayliffe . Mr. Justice Tracy, 2 P. Wms. 65. See Wankford v. Fotherley, 2 Vern. 322.-Maxwell . Lady Montacute, Prec. Ch. 526, 1 P. Wms. 612.-Allan 2. Bower, 3 Bro. Ch. 149.-Luders v. Anstey, 4 Vesey, 501-5 Vesey, 213. There is a difference between the 4th and 7th sections of the statute: the latter only requires that a trust shall be manifested by writing, not that it shall be constituted by writing--and the former requires the very agreement to be in writing-Per Sir William Grant, in Randall v. Morgan, 12 Ves. 67. A letter or other paper duly signed, clearly referring to another paper which contains the terms of the agreement, is sufficient-Tawney r. Crowther, 3 Bro. Ch. 161, 312, but there must be an actual reference; and an agreement for a lease not specifying a definite term, or referring to an advertisement in which such term was expressed, cannot be connected with the advertisement by parol evidence.-Clinan v. Cooke, S. & L. 22. The cases of Seagood v. Meale, Prec. Ch. 560 — Clerk. Wright, 1 Atk. 12-Whaley v. Bagenal, 1 Bro. P. C. 345-and also Clinan . Cooke, decide that a letter referring to an agreement, but not specifying the terms of it, is not sufficient. For cases of decreeing performance of an agreement not conformable to the statute on the ground of fraud, see Cooke v. Mascal, 2 Vern, 34 and 200.- Mallet v. Halfpenny, cited Pr. Ch. 404. For cases in which a person who has dissuaded another from making or altering his will, upon an engagement to comply with his intention, has been compelled to perform such engagement, see Chamberlaine . Chamberlaine, 2 Freem. 34, 2 Eq. Ca. b. 43, Prec. Ch. 4.-Devenish v. Baines, Prec. Ch. 3.-Oldham v. Litchford, 2 Vern. 506. -Reech . Kenegal, 1 Vesey, 123.-Barrow . Greenough, 3 Vesey, jun. 152. It is a well known exception, which Courts of Equity have introduced in the construction of the statute, that the benefit of it shall not be taken against an agreement which has been in part performed; and Buller, J. in Brodie v. St. Paul, 1 Vesey, jun. 333, intimated an opinion that the same rule would prevail at law-but the contrary opinion was strongly expressed by Lord Eldon, in Cooth v. Jackson, 6 Vesey, 29. The inclination of Courts of Equity, in modern cases, has been rather to narrow than to extend the doctrine of part performance. It is clearly settled, that giving directions for conveyances and going to view the estate, are not Acts of part performance. Marriage is also clearly not such a performance No. XVII. 39 Car. II. c. 3. V. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June all devises and bequests of any lands or tenements devisable either by force of the statute of wills or by this statute, or by force of the custom of Kent, or the custom of any borough or any other particular custom, (14) shall be in writing and signed (15) by the party so devising the same, or by some other person Devises of in his presence and by his express directions, and shall be attested and lands shall be in writing, and attended by three or four witnesses. 3 Lev. 86. Carthew 35, 514. 3 Mod. 218. 262. as takes an agreement in consideration of it out of the statute. It seems to be now settled, that payment of part of the purchase-money is not such a performance as takes a case out of the statute.-See Buckmaster v. Harrop, 7 Vesey, 341. Sir William Grant there said, that even if payment of the auction duty could be considered as a part of the price, he did not see how that could bind the purchaser. In general the party selling must shew a performance on his side, as a reason for the interference of the court in his favour-for the ground upon which the court acts is fraud, in refusing to perform after the performance of the other party. In Clinan v. Cooke, 1 Sch. & Lef. 22, 40, Lord Reddesdale held, that the payment of money was not a part performance and said, that he took it that nothing would be a part performance, which does not put the party into a situation that would be a fraud upon him, unless the agreement was performed. Taking possession by a purchaser and cutting crops is part performance.-Buckmaster v. Harrop, on appeal, 13 Vesey, 456. A tenant's continuing in possession upon alleged new agree ment, is not.-Frame v. Dawson, 14 Vesey, 386. In that case Sir Wm. Grant said, " Part performance must be an act unequivocally referring to and arising out of the agreement, and such that the party would suffer an injury amounting to fraud by the refusal to execute the agreement." He also considered it an objection to a specific performance, that the Act in question was such as would easily admit of compensation without executing the agreement. See the observations of Lord Redesdale as to the relaxations of the statute.-Lyndsay v. Lynch, 2 Sch. & Lef. 5.-See, as to part performance, the note to Pym v. Blackburne, 3 Vesey, 34. As to difficulties which may occur, when the defendant admits the acts alleged as part performance, but denies the agreement in respect of which they are alleged to be performed, see Foublanque's Notes on Treatise of Equity, B. 1, Ch. 3, § 8. If a Defendant deny that any parel agreement ever took place, a court of equity will not inquire into the truth of that denial.-Per Lord Eldon, Cooth v. Jackson, 6 Vesey, 12. Where a plaintiff had built a house, his witness proved an agree. ment different from that of the bill, and the answer stated an agreement different from both, the Lord Chancellor said, that in strictness the bill ought to be dismissed-but, on account of the expenditure, decreed specific performance of the agreement admitted by the answer, with costs against the plaintiff.-Mortimer r. Orchard, 2 Ves. jun. 243. But in Woollam v. Hearn, 7 Vesey, 211. Lyndsey v. Lynch, 2 Sch. and Lef. 1, the plaintiff having failed in establishing the agree ment insisted upon, the Court would not decree the agreement admitted, but dismissed the bill without prejudice to filing a fresh bill. It is settled, that if a defendant, by answer admits the agreement stated in the bill, and does not insist upon the statute, performance will be decreed; but whether he is bound to admit or deny the parol agreement, so that the effect of the statute is only to exclude evidence aliundé-whether he must take advantage of the statute, by way of plea-or, whether admitting the agreement he may insist upon the statute, by way of answer, are points not absolutely settled.-See Cottington v. Fletcher, 2 Atk. 155.-Lacon v. Mertins, 3 Atk. 4. - Rondeau v. Wyatt, 2 H. Bl. 63.---Eyre v. Ivison, cited 2 Bro. Ch. 563.--- Stewart v. Careless, ib. 565.---Moore r. Edwards, 4 Vesey, 23.--Whitchurch . Bevis, 2 Br. Ch. 559. It seems, however, to be the prevalent opinion, that it is sufficient to claim the benefit of the statute by the answer-see Cooth v. Jackson, 6 Vesey, 12-but if the defendant dees not insist upon the statute, in the answer to the original bill, he cannot do so in the answer to the amended bill, id. and Spurrier v. Fitzgerald, 6 Vesey, 548. This statute is in force in the island of St. Kitts, 4 M. & S. 1. (14) The statute does not extend to copyholds surrendered to the use of a will, nor to devises in execution of a power-but a power to appoint by will generally is held to mean, with respect to lands, a will conformable to the statute.-See Sugden on Powers, c. 5, 3. A person cannot create a power to devise by his own will, otherwise than according to the statute.- Habergham v. Vincent, 2 Vesey, jun. 204. A term of years is not within the statute, unless attendant upon the inheritance, in which case it is not severed by a will not duly attested.-Whitchurch r. Whitchurch, 2 P. Wms. 236. A Will duly attested, charging legacies on lands, extends to legacies given by an attested codicil---Brudenelle v. Boughton, 2 Atk. 258, vi.--8 Vesey, 495---but it must be a general legacy, and not a specific charge, which cannot be made by an unattested codicil, under a power expressed for the purpose in a regular attested will.---Rose v. Cunynghame, 12 Vesey, 29. (15) In some of the older cases, sealing was held a sufficient signing; but in Ellis v. Smith, in Chan. 1754, reported 1 Ves. jun. 11, the contrary opinion was expressed by Parker, C. B. Willes, C. J. and Sir John Strange, M. R. who assisted the Lord Chancellor. The same opinion was expressed by Lord Eldon, in Wright v. Wakefield, 17 Ves. 459. Writing the name at the top may be a sufficient signing.---Lemaine v. Stanley, 3 Lev. 1. No. XVII. 29 Car. II. c. 3. How the same shall be revocable. 3 Mod. 260. subscribed (16) in the presence (17) of the said devisor by three or four credible (13) witnessess, or else they shall be utterly void (19) and of none effect. (20) VI, And moreover no devise in writing of lands tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning cancelling tearing or obliterating (21) the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt cancelled torn or obliterated by the testator or his directions in manner aforesaid, or unless the same be altered by some other (16) An attestation with a mark is sufficient. --Harrison v. Harrison, 8 Vesey, 185, 504. The witnesses may attest at different times. Cook v. Parsons, Prec. Ch. 186.---Jones v. Lake, 2 Atk. 176. the testator. (17) This clause does not require the will to be signed by the testator in the presence of the witnesses, but only that it shall be attested by the witnesses in the presence of the testator---whereas the next clause, as to revocation, requires the signature in the presence of the witnesses, but not the attestation of the witnesses in the presence of It is sufficient if the testator might see the witnesses attest, and not necessary that he actually should do so---as when the testator was in a carriage, and the attestation in a house, it being sworn that the testator might see what passed. See Cosson . Dade, 1 Bro. Ch. 99.--Shires u. Glascock, 2 Salk. 688. But where the attesting witnesses retired from the room, where the testator had signed, and subscribed their names in an adjoining room, and the jury found that from one part of the testator's room a person, by inclining himself forwards with his head out of the door, might have seen the witnesses, but that the testator was not in such a situation that he could have seen them by so inclining, the will was held to be not duly attested.---Doe dem. Wright v. Manifold, 1 M & S. 294. If the testator is in a state of insensibility at the time of the attestation, such attestation is void.---Right v. Price, Doug. 241. The rule of the civil law, Coram Titio aliquid facere jussus non videtur eo præsenti fecisse nisi is intellegat. Itaque se furiosus, ant infans sit aut dormiat, non videtur coram eo fecisse.. Dig. £5. tit. 16, de verb. sig. 1. 209, is very apposite to this subject. It is not necessary that the attestation should express, that it was made in the presence of the testator... Hands v. James, Com. Rep. 531.---Bruce . Smith, Willes' Rep. 1. An attestation "signed sealed published and declared in the presence of "is evidence to a jury, that the attestation was made in the presence of the testator.---Croft v. Pawlett, 2 Strange, 1109. [See upon this subject, Lord Rancliffe v. Parsons, 6 Dow. Rep. 202.] (18) A person attainted of felony held not a credible witness.---Pendock r. Mackender, 4 Burr. Eccl. L. 104. As to the objection of interest, see Stat. 25 G. II. c. 6. post title Wills. (19) It is by force of these words, that a will of land, not duly attested, is not sufficient even to put the heir to his election, with respect to personal estate.---See the case ex-parte the Earl of Ilchester, 7 Vesey, 348, 372.---See also the observations on Thelluson v. Woodford, 13 Vesey, 223. A wish has been often expressed by great authorities, that all testamentary acts should be rendered subject to the solemnities required by the statute; and certainly the importance of such a provision is extremely evident, when it is considered how much the intentions of a testator may be defeated by a will which is founded on one arranged plan, being partly good and partly void. The uncertainty as to what shall or shall not constitute a sufficient manifestation of the will, with respect to personal estate, is also extremely inconvenient, and a great source of litigation.---See the observations of Lord Loughborough on this subject, Matthews v. Warner, 4 Vesey, 186. (20) As to wills of land in the plantations, see Stat. 25 G. II. c. 6, post title Wills. (21) A beginning to cancel under the impression that a new will is complete, and desisting upon being informed to the contrary, is no revocation. Hyde v. Hyde, 1 Eq. Abr. 409. So a cancellation upon making a new will which is invalid by reason of the witnesses not attesting in the presence of the testator. Onyons v. Tyrer, Prec. Ch. 459.--IP. Wms. 344. Con. Ed.---Throwing the will into the fire with intent to destroy it is sufficient, though it falls off and is preserved. Bibb. v. Thomas, 2 BI. Rep. 1043. The obliteration of a part is only a revocation as to that part. Sutton v. Sutton, Cowp. 812. Striking out the name of one joint-tenant has the effect of leaving the entire estate in the other. Aliter as to tenants in common who cannot thereby acquire an estate not originally given. Larkins v. Larkins, 3 Bos. & P. 16, 109. See also as to the first point, Short r. Smyth, 4 East, 419.--- Whether obliterating the names of some trustees or other devisces and substituting others is a revocation as to the former purpose, not being effectual as to the second, Qu. ibid. A cancellation of the one part is a revocation of duplicates. Eurtenshaw . Gilbert, See Pemberton v. Pemberton, 13 Cowp. 49. Vesey, 290. In that case the testator made duplicates of his will, and afterwards altered, and subsequently cancelled one part---the one part uncancelled, and the other altered and cancelled, and a codicil without a date, were found in his possession at his death---and a verdict in favour of the will was sustained.---The immediate decision was on the fact of an intention to cancel, but the legal doctrines are very fully gone into, will (22) or codicil in writing or other writing of the deviser, signed in the presence (23) of three or four witnesses declaring (24) the same; any former law or usage to the contrary notwithstanding. (25) No. XVII. 49 Car. II. c. 3. VII. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June, all declarations or creations of trusts or confidences of any lands tenements or hereditaments, All Declarashall be manifested and proved (26) by some writing signed by the party tions or Creations of trusts shall be in writing. (22) A subsequent will of lands is only a revocation so far as the dispositions are inconsistent.--Coward v. Marshall. Cro. Eliz. 721. A finding that the testator afterwards made another will of which the contents are unknown---or that the testator made a subsequent will different from the first, but in what particular is unknown, and that it does not appear what became of the second will, is not sufficient to revoke the first.---Hungerford v. Nosworthy, Sho. P. C. 146.---Hutchins v. Bassett, Salk. 592.---Harwood v. Goodright, Cowp. 87.--7 Bro. P. C. 8vo. 489. A will with a clause of revocation conformable to this section, being signed by the testator in the presence of the witnesses, but not valid as a will, not being attested in the presence of the testator, is not a revocation, not being intended for such as an independent act.---See Onyons v. Tyrer, supra No. 21.---Egglestone v. Speake, 3 Mod. 258.--1 Sho. 89. It is to be observed, however, that in those cases the substantial dispositions were the same in both wills, as to the materiality of which vi. ex parte the Earl of Ilchester, 7 Ves. 373. (23) A will acknowledged as such in the presence of three witnesses, is good--and although not signed in their presence, a suffcient revocation-and, though being a devise to an heir at law, void as a will, is a valid instrument of revocation, being executed according to the statute.Ellis v. Smith, 1 Vesey, jun. 11. (24) A declaration of the testator, certified by three witnesses, but not signed by him, that he revokes his will, is void.-Hilton . King, 3 Lev. 86. (25) It is completely settled, that the provisions of this section do not extend to revocations by operation of law, such as a subsequent marriage and the birth of a child.-See Doe on the demise of Lancashire r. Lancashire, 5 T. R. 49— in which this was decided, in respect to a posthumous child, and the doctrine considered as resting rather upon a tacit condition than upon an implied revocation; but it may be qualified by circumstances where the subsistence of the will is not inconsistent with the new relations which are contracted.-See Brady r. Cubitt, Doug. 39, and more particularly Kenebel v. Scrafton, 2 East. 530-in which a testator made provisions in favour of the children that he should have by A. B. with whom he then cohabited and afterwards married and had children by; a total want of provision for the family so newly constituted being considered as the basis of the tacit condition-and see ex-parte the Earl of Ilchester, 7 Vesey, 348, which related to the revocation of a testamentary appointment of a guardian, referred to in note to Stat. 29 Ch. II. c. 24, ante No. 15. Explained by 4 Anne, c. 16. section, 15, Post. The case upon this subject contained in the additional note (a) infra, has already been published by the Editor, in a note to Lugg v. Lugg, 2 Salk. 592. That a tacit revocation by subsequent marriage and birth of child without provision, can be rebutted by parol evidence, is affirmed per Cur. Lord Raymond, 441, Doug. 31-per Eyre, 2 H. Blackst. 522; negatived per Lord Alvanley, 4 Ves. jun. 848-Lord Rosslyn, 5 Ves. jun. 664. The doctrine of revocation by an alteration of the estate, is referred to in note to 32 H. VIII. c. 1, post title wills, No. 1. The cases respecting the republication of wills chiefly relate to the rule, that a will as to real estate can only operate upon the land which the testator has at the time of the execution-and establish, 1st. That a republication of a will gives it the same effect as if originally made at the time of the republication-see Marten v. Savage, 1 Ves. 440-and 2d, That a codicil confirming a will gives effect to the whole will, as if made at the time of publishing the codicil, whether the codicil be annexed to the will or not,-see Acher. ley t. Vernon, Com. R. 381, 3 Bro. P. C. 107Barnes v. Crowe, 1 Vesey, jun. 486, 4 Bro. Ch. 2 Piggott v. Waller, 7 Vesey, 98,-except the expressions of the will or codicil are of so qualified a nature as to require a different construction.Strathmore. Bowes, 7 T. R. 482-2 Bos. & Poll. 500.-Holmes . Coghill, 7 Ves. 499.Lane v. Wilkins, 10 East, 212. The cancelling a second will revives the first, which was thereby revoked-Goodright v. Glazier, 4 Bur. 2512-but if one part of a will, of which there are duplicates, be cancelled at the time of making the second, the other duplicate then not being in the testator's possession, the first is not revived by cancelling the second.-Burtonshaw v. Gilbert, Cowp. 49and see Pemberton . Pemberton, mentioned in note 21. (26) The fullest information as to the principle which has been adopted with respect to the construction of this clause, is to be derived from the case of Forster . Hale, 3 Vesey, 696, in which it was held, that an agreement for one person to be a trustee for others might be made out by letters, in which he admitted himself to be such-and that, according to the true meaning of the statute, it is sufficient if it appears in writing, under the hand of a person having a power to declare himself a trustee, which is equivalent to a formal declaration of trust. The Master of the Rolls, (Sir R. P. Arden,) observed, that it is not required that the trust should be created in writing, and the words of this clause are very particular it does not by any means require that all trusts should be created only by writing-but that No. XVII. 29 Car. II. c. 3. who is by law en bled to declare such trust, or by his last will in writing, VIII. Provided always, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or Trusts arising, extinguished by an Act or operation of law, then and in every such case transferred or such trust or confidence shall be of the like force and effect as the same extinguished by would have been if this statute had not been made; any thing herein beimplication or fore contained to the contrary notwithstanding. (27), law, not except ed. Assignments of trusts in writing. Lands &c. shall be liable to the Judgments, &c. of Cestuy que trust; and held free from the in cumbrances of the persons sersed in trust. IX. And be it further enacted, That all grants and assignments of any trust or confidence shall likewise be in writing signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect. X. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June, it shall and may be lawful for every sheriff or other officer to whom any writ or precept is or shall be directed, at the suit of any person or persons, of for and upon any judgment statute or recognizance hereafter to be made or had, to do make and deliver execution unto the party in that behalf suing of all such lands tenements rectories tithes rents and hereditaments, as any other person or persons be in any manner of wise seised or possessed or hereafter shall be seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution hereafter shall be so sued, had been seised of such lands tenements rectories tithes rents or other hereditaments of such estate as they be seised of in trust for him at the time of the said execution sued; (28) which lands tenements rectories tithes rents and other hereditaments by force and virtue of such execution, shall accordingly be held and enjoyed freed and discharged from all incumbrances of they shall be manifested and proved by writing, plainly meaning that there should be evidence in writing proving that there was such a trust. He admitted that it must be proved in toto, not only that there was a trust, but what it was. In the particular case, his Honor, from several letters and papers, inferred an agreement, that the lessee of a colliery took it on account of himself and other persons with whom he was engaged in partnership. See also Randall t. Morgan, 12 Vesey, 73, 74. (27) The most common case of trusts by operation of law is where an estate is purchased by one man and the purchase-money paid by another.See the cases referred to in Forster . Ilale, mentioned in the last note. Where a person purchased an estate in his own name, and insisted in answer to a bill alledging that it was made by him as agent for the plaintiff, that it was made un his own account; Lord Northington refused to permit parol evidence of the agency in opposition to the defendant's answer, but said, that if the plaintiff had paid any money, it would have been a reason with him to admit the evidence. The defendant was afterwards convicted of perjury upon his denial of the trust, and a petition was presented to the Lord Chanceller for leave to le a supplemental bill in the nature of a bill of revivor, stating this conviction, but the petition was dismissed. Bartlett . Pickersgill, cited 4 East, 577. The general presumption that where a conveyance is made to one person and the purchase money paid by another, the former is a trustee for the latter, is rebutted in the case of a purchase made by a father in the name of his child, which Dyer, in the Exchequer, 1 Watkins on Copyholds, 216.-See also Rider v. Kidder, 10 Vesey, 360.-Finch . Finch, 15 Vesey, 48. Where a trustee purchases lands with the trust money and takes a conveyance in his own name, a trust will result and evidence may be given aliunde, that the purchase was made with trust money, although denied by the defendant's answer.- -Balgrey . Balgrey, and Ryal . Ryal, cited in Lane . Dighton, Ambler 409.-See upon this subject Perry . Philips, 4 Vesey, 108, in which it was held there were not sufficient circumstances to induce the presumption that the purchases were made in execution of the trust.See also Foublanque's Notes, Treatise of Equity, B. 11. c. 5, s. 1. (28) If the trustee convey lands after judgment and before execution to a purchaser without notice, the land cannot be taken in execution.— Hurst v. Coles, Comyns 226.-Higgins . Yor Buildings Comp. 2. Atk. 167. Query, Whether the land is liable in case the purchaser has notice. See Sugden on Venders and Purchasers, Ch. 9. on Searching for Incumbrances. A conveyance in trust to sell and pay debts, and the surplus to the grantor, is not a trust within the Statute.—Ibid. |