The trust created by the deed to Bock was, as it seems to me, at most, a passive one, and under the 49th section of the Statute of Uses and Trusts (1 B. S. 728), the title, both legal and equitable, was held by William A. Wilson at the time of his death. This section of the statute provides that “ Every disposition of lands, whether by deed or devise, hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other to the use of, or in trust for, such person ; and if made to one or more persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.”
It is conceded in the prevailing opinion that the deed to Bock and the instrument executed by him, declaring his relation to the property, are to be construed together, and that the terms or conditions upon which the title was held by Book are to be gathered from both instruments; that the conveyance to Bock, although made through the medium of an attorney in fact, is William S. Wilson’s own deed, and the declaration of trust actually executed and delivered by Bock, is, in effect, to be read into the conveyance made by William S. Wilson to him. This is undoubtedly true, but it is also true that these instruments are all of them to be read and construed in connection with the stipulation settling and discontinuing the suit between William A. Wilson and William S. Wilson as to the title to certain property, including that in suit, and which involved the consideration of the conveyance by William S. Wilson to Bock. The stipulation recites: “ For and in consideration of the withdrawal of the case of Wilson vs. Wilson, and the satisfaction and settlement of all disputes between the parties hereto, William S. Wilson, the defendant, hereby agrees to convey and *192transfer to a trustee to be hereafter selected by said William A. Wilson, by warranty deed, the following property for the sole use and benefit of said William A. Wilson, the plaintiff, to wit,” Then follows a description of the property in suit.
When these instruments are all read and construed together, they clearly indicate that the parties intended that the conveyance to Bock should be for the benefit of William A. Wilson and no one else. The stipulation so provides; the power of attorney “ is irrevocable, unchangeable, unlimited and not subject to countermand or cancellation ; ” the declaratory instrument executed by Bock recites that the deed to him is only iii trust for “ the said William A* Wilson, his heirs, administrators and assigns; ” the conveyance was intended by the parties to be for the benefit of William A. Wilson and for no one else, and, as it seems to me, the proper construction to be given to it brings the case directly within the provision of the statute referred to. If I am correct in this conclusion, then it necessarily follows that Marren, the judgment creditor, is entitled to be paid but of the surplus moneys a sum sufficient to satisfy his judgment. The legal title to the land, the proceeds of the sale of which are here sought to be distributed, was in William A. Wilson. Marren had a judgment which the statute made a lien upon the land, and having become a party to this proceeding, he has a legal right to so much of the surplus as is necessary to satisfy the judgment.
For these reasons I am unable to concur in the opinion of Mr. Justice Patterson.
Order reversed and order entered as directed in opinion, with costs of the proceeding in the court below and in this court to be paid by William S. Wilson.