BROOKS VS. DENT. 5SQ

But here there was no possession delivered, nor bond of con-
veyance or other instrument of writing executed. On the con-
trary, Mr. Brawner, the husband, retained the possession and
use of the property to the day of his death, and was, according
to all the manifestations of title known to the law, the absolute ,
and unqualified owner of it. The title now set up as against
his creditors, who trusted him upon the faith of this property;

rests either upon a secret verbal agreement, or upon the legal ^
doctrine adopted to advance the purposes of justice as between
the party who actually pays the money and him to whom the
conveyance is made, that a trust results in favor of the former,
and will be enforced in equity as against the latter.

But, in a case lik« the present, and as against subsequent
creditors, I am of opinion, no such trust can be raised, or results
by legal implication; and with respect to the verbal agreement
relied upon in the answer, and already spoken of, it having ref-
erence to land, and thus being unlike the case of Alexander vs.
Ghiselin, would be void by the statute of frauds, as expressly
stated by the court in that case.

I, therefore, think no reason has been shown why the tract
of land called "Elleslie" should not be liable to be sold to pay
the creditors of the deceased Henry Brawner.

This bill was filed on the 12th of November, 1840, and the
promise by Mr. Brawner, as proved by Judge Grain, in July or
August, 1838, is, in n»y opinion, a complete answer to the plea
of limitations. *

With regard to the claim founded upon the promissory note
signed by Stewart and the deceased, there being no evidence
either that the latter was the principal debtor, or that Stewart
is insolvent, I do not think that, according to the Chancery
rule, the estate of the deceased can be charged with more than
one-half that debt; but, as stated during the argument, the
question will be reserved, with liberty to the complainants to
introduce proof to obviate the objection.

. The statute of frauds is relied upon as a defence against the
claim founded upon the open account, and it 19 insisted that
this is an attempt to charge the estate of the deceased with the
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