The question whether the pauper acquired a settlement in the defendant town by virtue of his enlistment, as a part of its quota, in the military service of the United States, we do not find it necessary to consider. It is found as a fact, in the report, that his grandfather had a legal settlement in that town, of which he would have the benefit, unless his father, Silas J., acquired one afterwards in Hardwick, as claimed by the defendants. It appeared that Silas J. lived for several years in that part of Hardwick which has since been set off to the plaintiff town; and the defendants insist that in such residence he in two different ways fulfilled the conditions made necessary by the statute to the acquisition of such a settlement, namely: 1st. Having and living on a freehold estate in Hardwick three years successively; 2d. Residence in that town for ten years and payment of taxes five years of the ten.
As to the acquisition of such settlement in the second of these two modes, the report finds that it was not proved that he paid the taxes which were assessed upon him during the five years to which the evidence offered by the defendants applied. Upon this q lestion, the burden of proof was clearly upon the defendants, and as it is not met, this specific defence falls to the ground. Berlin v. Bolton, 10 Met. 115, 120.
It only remains then to consider whether he acquired a settlement in Hardwick in the other mode relied upon by the defendants. According to the facts presented by the report, it is manifest that he had no freehold title, in the common law sense of the term, in the dwelling in which he resided, until January 2,1837, that being the date of the deed from Mark Haskell to him. He removed from that place to another in the same town, on February 26, 1839, at which time he sold the house and land to John Page, thereby terminating the requisite united residence *602and ownership more than ten months before the expiration of the three years. He had no title in the new place, except a bond giving him the right of purchase on payment of one thousand dollars and interest in seven years. It was held in West Cambridge v. Lexington, 2 Pick. 536, that such a title is not a freehold within the meaning of the statute.
The defendants contend that he had at least an equitable estate in the land; that the legal title was held in trust for his benefit, and that so the case comes within the decision of Randolph v. Norton, 16 Gray, 395. In that case, a person had placed a building upon a lot of land which he had previously agreed to buy, and which he afterwards did buy and pay for, and had directed that the deed should be to a third person to whom he owed the price of the house, he taking a bond from that person for the reconveyance to himself on the payment of the debt on a day agreed upon, with interest, the occupation in the mean time being allowed to himself. It was held that this bond was really a declaration of trust. The earlier case of Orleans v. Chatham, 2 Pick. 29, is of the same general character. Both were cases of the pledge of property to secure a creditor, and the title of the debtor was analogous to that of a mortgagor. In both these eases, it was held that the debtor had an equitable freehold, capable of satisfying the terms of the statute as to this special mode of acquiring a settlement. But we find no case in which it has been held that the obligor in a bond to convey land on the payment of a sum of money can be said to hold in trust for the intending purchaser after the expiration of the stipulated time without the payment. Hone of the land was conveyed until nearly four years after the expiration of the time limited by the bond, when a portion of it was conveyed (probably at the request of Silas J.) to his brother Benjamin F., at which time a payment was made upon the bond. Another portion was conveyed about four years afterwards. But upon the facts contained in the report we see nothing in the nature of evidence that the bond was paid in full, or in such a sense that Haskell could possibly be said to hold the title in trust for Silas J. at any time before the final conveyance to him in January 1837. See Harvey v. Varney, 98 Mass. 118 *603122. The acts of ownership exercised by him are not described, and may have been such as would be naturally accounted for by the fact that he held a lease, and occupied under an expectation of purchase. Without proof that the bond had been paid, they would not be sufficient to make out an equitable title to the freehold, by virtue of which Silas J. could have acquired a settlement.
Judgment for the plaintiff»,