This is a bill in equity to redeem land from a mortgage. To this bill there is a general demurrer and joinder. Without going minutely into the circumstances of the case, the court are of opinion that the plaintiff has shown no right to redeem, and that this suit cannot be maintained.
The bill shows that the persons who held the mortgage, and from whom the assignment was made to Richardson, now deceased, several years after the condition broken by the nonpayment both of interest and principal of the debt secured by it, entered on the premises, for condition broken, in due form of law, and had continued that possession between two and three years, when the assignment was made.
The estate therefore became foreclosed, and the redemption oarred, unless something is alleged, showing that the entry to foreclose was waived, or in some way the right of redemption opened. But it appeal's to us that no such thing is shown by the bill. The averment is, that in 1844 the plaintiff) Lemuel, with Joel, as assignees, and in discharge of their duties as trustees, applied to Richardson, a friend of the parties, and by marriage a relation of Joel, to pay and advance to Moses and David Williams, assignees of the mortgage, the amount due thereon, for the benefit of said Lemuel and Joel, and to prevent a foreclosure—by which we understand a foreclosure to said Moses and David, who are described as strangers; not to prevent a title by foreclosure to Richardson, described as a friend of the parties and a relation of one of them. The bill then goes on thus: “ And requested the said Richardson that he would take an assignment to himself, as security for the sum to be advanced by him, but nevertheless in trust, and upon a confidence that he would hold the same ”—that is, the estate, the mortgage interest until foreclosure, and the absolute title after-*369wards—“ for the benefit of the said Lemuel and Joel, and would reconvey the same to them upon payment of the sum which the said Richardson might pay for the said assignment, with interest thereon.” A subsequent allegation of an arrangement by Joel Capen and Richardson, is substantially to the same effect, adding that said assignees should be permitted to sell the said parcels of land, for house lots or otherwise, paying the proceeds to said Richardson until he should be reimbursed; and that said assignees should be permitted to redeem.
We can perceive nothing in these statements indicating an intention, on the part of Richardson, to waive the entry for foreclosure, or any expectation of the parties that, if not redeemed within the three years, the mortgage would not be foreclosed, and the legal estate become absolute in Richardson. A stipulation to reconvey, when made simultaneously to one from whom the title has been derived by an absolute contemporaneous deed, is held to be a mortgage, and to constitute a redeemable estate. But the rule is limited to the case described, where the covenant to reconvey is given immediately back to the grantor, from whom the title came; which is not the present case. On the contrary, the alleged provision, that the land should be sold in house lots or parcels, the title to which must of course come from Richardson, in whom, after three years, the record title would apparently stand, seems rather to imply that, according to the understanding of the parties, the mortgage was to be foreclosed, and an absolute title vested in Richardson, in order that a valid legal title might be given to the purchasers.
If the plaintiff could have any remedy in equity upon the facts set forth in the bill, it must be upon the ground of trust, and not upon the right to redeem the mortgage. The question then arises, whether the suit could be maintained on the ground of trust; and the court are of opinion that it could not.
1. Because it would be a trust concerning lands, and there was no declaration in writing, and it is therefore void by the Rev. Sts. c. 59, § 30, which provide that no trust concerning lands, excepting such as may arise or result by implication of law, shall be created or declared, unless by an instrument in writing, *370signed by the party creating or declaring the same, or by his attorney.
2. Nor can it be sustained on the ground of a resulting trust, because, in the present case, Richardson paid the whole consideration for this assignment, from his own money; nor is any fact or circumstance set forth, from which a trust may arise or result by implication of law. Demwrrer sustained.