Ferrin v. Errol , 59 N.H. 234 ( 1879 )

Upon the facts found by the court, there was a resulting trust in favor of the plaintiff when the purchase was made by Bragg. Scoby v. Blanchard,3 N.H. 170; Pritchard v. Brown, 4 N.H. 397; Page v. Page, 8 N.H. 187; Gove v. Lawrence, 26 N.H. 484; McDonough v. O'Niel, 113 Mass. 92; Kendall v. Mann, 11 Allen 15; Blodgett v. Hildreth, 103 Mass. 484; Bigelow on Fraud 108, 109, 110; Story Eq. Jur., s. 1201; Perry on Trusts, 1st ed., c. 5. And this trust will follow the estate in the hands of all, with notice actual or constructive. Bigelow on Fraud 113; Perry on Trusts, ss. 217, 828; 2 Lead. Cas. in Eq., H. W., notes 136, 182.

The defendants do not stand in the position of parties without notice; for the possession and occupation by the plaintiff was constructive notice that he was in under a title, either legal or equitable. Patten v. Moore,32 N.H. 382; Doe v. Doe, 37 N.H. 268, 282; 2 Lead. Cas. in Eq., H. W., notes 164, 165; Perry on Trusts, s. 223. Nor will the fact that Errol has obtained judgment against the plaintiff, in the writ of entry, deprive him of relief. Story Eq. Jur., s. 874; Kerr on Inj. 23. The defendants invoke in their aid the maxim that "where the equities are equal the law must prevail;" but that maxim does not apply here. The equities are not equal. The defendants are here, claiming through Bragg, with constructive notice of his title. As against the plaintiff he has no title, and the defendants stands no better than he does.

Exception overruled.

DOE, C. J., did not sit: the others concurred.