I fully concur in every view which my brethren have taken of this case, and while the views just uttered are entirely conclusive in regard to the decree to be pronounced, another objection to recovery by the complainant has been so strongly impressed upon my mind that I deem it proper to state it here, as it also is fatal to the complainant’s case.
Ebenezer Gr. Whiting entered into contract with Wright and Knapp for the purchase of the land mentioned in the complainant’s bill, and paid $500 of the purchase money. On the perfermance of the other conditions or terms of the contract, he would become entitled to a deed. On the performance of these terms, had he directed the title to be taken in the name of Mary, or any other person, such person would become a trustee by implication of law. Or, in other words, a trust would have resulted from these transactions, in the holder of the title thus acquired, for the use of Ebenezer. But a few days after the execu*596tion of the contract of purchase, Ebenezer sold and the contract to his brother, David W., who was the holder of it at the time when the deed was made, and had the right to give direction to the title to be conveyed by the vendor. David’s right, as the purchaser of the contract, was not identical in all respects with that of Ebenezer, the purchaser of the land. The money of Ebenezer was invested in the land; the money of David was invested in a chose in action. 'From the former transaction a trust springs ; from the latter it does not.
If A. purchase land of B. and pay his money for it, and takes the title in the name of 0., a trust results, by operation of law, in C. for the use of A. This trust arises not from the agreement, but from the transaction of the parties. It flows or results from the payment of the money into the land.
If A. purchases land from B. and pays him the price, and instead of taking a deed for the same, takes an agreement to pay at some future day, and at maturity of the contract has the title taken in the name of C., here also results a trust in 0. for the use of A., because the trust springs from the payment of the money by A. for or into the land. But if A., before the maturity of the contract, sells and assigns his contract to D., and at maturity D. directs the title to be made in the name of E., here no trust results by operation of law, because D. has paid no money for the land, but only for a chose in action, which is not the subject of a resulting trust. He invested his money, not in the land, but in the contract which would enable him to demand the title for himself or his assigns. If he directed the deed to be made to E,, the latter might be a trustee of D., and if the trust were declared in *597writing, it would be valid; but vesting in parol, or, wbicb is the same thing, tacit understanding, would be void by the statute of frauds.
I by no means deny that a resultant trust, already vested, may be assigned. But I do deny that the transactions of one party, out of which a trust may spring at a future day, may be beneficially transferred to another ; or, in other words, that the parties may be so transmitted that the one may take the place of the other by the mere act of bargain and sale.
Whenever a trust results by operation of law, it does so independent of contract. It is the vital energy of the law, called into operation by the transactions of the parties ; it is the equitable spirit of the law, springing out of the land in behalf of him, who has invested his money therein. In its very nature it is contradistinguished from the rights and interests which arise out of contract. For this reason a resulting trust need not be evidenced by writing.
Every interest which the assignee of the agreement to convey the land possesses, rests and necessarily rests in contract, and in nothing else. He has performed no act that does not rest for its verification in contract. As no trust had vested in the original vendor at the time of his assignment, he could pass none to his assignee. As an implied trust results from the transaction of the parties, and not from their contract, there can be no contingent or inchoate trust of that class. When the original vendee, who has paid the purchase money and taken a contract, assigns that contract before the deed is due, he thereby extinguishes every possibility of a trust resulting from his transaction. As all of the rights of his assignee arise out of his contract of assignment, it follows that any *598trust that can accrue to Mm must also arise out of Ms contract, and if lie would place the title which would accrue to him in a trustee, it is apparent ^at a]1y guc]1 i-elation. must likewise he created by contract, and of course must be in writing.
The application of these principles and doctrines to the case under consideration, is fatal to the complainant’s bill of complaint.
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