tion is under color of the laws of the United States and the regulations of the post-office department.21

In order to settle in my own mind, at least, the question of the extent of the concurrent jurisdiction of the State courts, I have gone directly to the constitution of the United States and made an exhaustive, logical analysis of Art. X. of the Amendments.. This article is known usually, as the "States Rights" article. It reads as follows:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It follows from this article that there are three depositories of power, viz: the United States, the States and the people. There are eight classes of powers, viz:

1 Powers delegated to the United States.

2 Powers not delegated to the United States.

3 Powers prohibited to the States.

4 Powers not prohibited to the States.

5 Powers reserved to the States.

6 Powers not reserved to the States.

7 Powers reserved to the people.

8 Powers not reserved to the people.

With regard to the extent of these several classes of powers, the article in question gives us the following rules:

1 The powers delegated to the United States are, either prohibited to the States and not reserved to the States and not reserved to the people (i. e. exclusive); or they are not prohibited to the States but are reserved to the States and not reserved to the people (i. e. concurrent).

2 The powers not delegated to the United States are, either reserved to the States, or they are prohibited to the States and reserved to the people.

3 The powers prohibited to the States are, either delegated to the United States and not reserved to the people; or they are not delegated to the United States and are reserved to the people.

4 The powers not prohibited to the States are, either delegated to the United States and reserved to the States (i. e. concurrent): or they are not delegated to the United States but are reserved to the States.

5 The powers reserved to the States are, either delegated to the United States (i. e. concurrent): or they are not delegated to the United States and not reserved to the people (i. e. exclusive).

6 The powers not reserved to the States are, either delegated to the United States and prohibited to the States; or they are not delegated to the United States but are prohibited to the States and reserved to the people.

7 The powers reserved to the people are not delegated to the United States and are prohibited to the States.

8 The powers not reserved to the people are, either delegated to the United States and prohibited to the States; or they are delegated to the United States and reserved to the States; or they are not delegated to the United States and not prohibited to the States but are reserved to the States.

It follows necessarily from these rules that the powers reserved to the States are always concurrent with the powers delegated to the United States, unless the powers are prohibited to the States or are reserved to the people; and,consequently, Congress cannot either exercise or confer exclusive powers unless the constitution of the United States prohibits the States from a concurrent exercise of the same powers; and any at

21 Teall v. Felton, 1 Comst. 537.

tempt on the part of Congress to deprive a State of any of its reserved powers is unconstitutional and void. There is no provision, either direct or implied, in the constitution of the United States which prohibits a State from exercising legislative or judicial power over the subject of offenses against National banks, and consequently it comes under the reserved powers of the States. "A different rule obtains in interpreting the powers in the constitutions of the United States and the States. In ascertaining the powers of the former, we examine to see what powers are expressly granted or are necessarily implied for their exercise. In the latter we only examine to see what are denied by the Federal and State constitutions; and my view of the law-making power of these State governments is, that they can do any act not prohibited by the constitution; and without and beyond these limitations and restrictions, they are as absolute, omnipotent, and uncontrollabe as Parliament."22 The powers proceed not from the people of America, but from the people of the several States, and remain what they were before the adoption of the constitution, except so far as they may be abridged by that instrument.28 The State legislature retains all the powers of legislation delegated to it by the State constitution, which are not expressly taken away by the constitution of the United States.24 THOS. D. HAWLEY.

East Tawas, Mich.

22 Mason v. Waite, 4 Scam. 134.

23 Sturges v. Crowninshield, 4 Wheat. 122.

24 Calder v. Bull, 3 Dall. 386; 2 Root, 350; Commonwealth v. Kimball, 41 Mass. 359; People v. Naglee, I Cal. 231.

RESULTING TRUST-EQUITABLE TITLEVENDOR AND VENDEE-"STRANGERS” -BROTHER AND SISTER-STATUTE OF FRAUDS.

HARRIS v. MCINTYRE AND OTHERS.*

Supreme Court of Illinois, October 5, 1886.

1. Vendor and Vendee-Equitable Title-Possession -Notice.-Where a sister who has paid the larger part of the purchase money of a farm, the title without her knowledge or consent being taken in the name of her brother, who paid the balance, acts as housekeeper only, and the brother manages the farm, and is commonly known as the owner, such possession of the sister will not put one advancing money to the brother on a deed of trust on the farm, without actual knowledge of the sister's rights, upon constructive notice as to her equitable lien.

4. Equity-Limitations-Inequitable Bar.-Where no statute of limitations applies, the time in which a party will be barred from relief in a court of equity necessarily depends upon the circumstances of each case; and, where an excuse for delay is given which renders it inequitable that the bar should be interposed, no lapse of time, however great, will bar a recovery.

Appeal from Carroll county.

M. Y. Johnson and Geo. L. Hoffman, for appellant, Harris.

A resulting trust arises by implication of law, and does not depend on any agreement between the parties; and hence is not affected by the statute of frauds. Mahoney v. Mahoney, 65 Ill. 406; Wilson v. Byers, 77 11. 76; Smith v. Smith, 85 Ill. 189; Loften v. Witboard, 92 Ill. 461; Roberts v. Opp, 56 Ill. 34; Boyd v. McLean, 1 Johns. Ch. 582; Story, Eq. Jur. § 1201.

The grantee, with notice, of a trustee under a resulting trust, stands in his shoes, and is a trustee for the owner who paid the money. West v. Fitz, 109 Ill. 425.

The law presumes that a prudent man, before purchasing, will, if the land is occupied, make necessary inquiry to ascertain by whom and by what right he is there. Truesdale v. Ford, 37 Ill. 214; Clevinger v. Ross. 109 Ill. 349; Rupert v. Mark, 15 Ill. 540; Brooks v. Brown, 18 Ill. 542; Lyman v. Russell, 45 Ill. 281; Hubbard v. Kiddo, 87 Ill. 578; Story, Eq. Jur. § 400.

James Shaw, for appellees, McIntyre and others. Parol evidence to establish resulting trusts is received with great caution. Perry, Trusts, 110, note, §§ 137-139; Lantry v. Lantry, 51 Ill. 458; Mahoney v. Mahoney, 65 Ill. 406; Enos v. Hunter, 4 Gilman, 218, 219; Maple v. Nelson, 31 Iowa, 322. If the transaction can be called a loan, no resulting trust arises. Perry, Trusts, 106, note; Steele v. Clark, 77 Ill. 474; Doyle v. Murphy, 22 Ill. 502; White v. Carpenter, 2 Paige, Ch. 238,239.

If the statute of frauds is set up as against express trusts resting in parol, its effect is inexorable on express trusts not in writing. McDonald v. Stow, 109 Ill. 44; Perry, Trusts, §§ 126-135; Hovey v. Holcomb, 11 Ill. 660; Greene v. Cook, 29 Ill. 193; Kane Co. v. Herrington, 50 Ill. 237; Carpenter v. Davis, 72 Ill. 17; Holmes v. Holmes, 44 Ill. 169: Sheldon v. Harding, Id. 69,

Parties must act with promptness, or show good and legal cause for long delays. Perry, Trusts, §§ 141, 870; Hall v. Fullerton, 69 Ill. 448; Carpenter v. Carpenter, 70 Ill. 457; Williams v. Rhodes, 81 Ill. 571; Castner v. Walrod, 83 Ill. 171; McDonald v. Stow, 109 Ill. 44; Breit v. Yeaton, 101 Ill. 244; 2 Story, Eq. Jur. § 1520.

Where possession is relied on as notice to purchasers of land of equitable claims not of record, it must be so open and notorious as to indicate to neighbors, who has the control and management. Hubbard v. Kiddo, 87 Ill. 580; Truesdale v. Ford, 37 Ill. 214; Strong v. Shea, 83 Ill. 578; Smith v. Jackson's Heirs, 76 Ill. 254.

SHOPE, J., delivered the opinion of the court: It is not alleged in the bill that appellees Ashway and Marks, or either of them, had actual notice of the equitable rights of appellant set up in her bill; and unless she had such possession of the land in question as would put them upon inquiry as to her rights therein, it is not contended that they had any notice whatever.

We have carefully considered the evidence preserved in the record, and find the facts proved to be these: In February, A. D. 1869, appellant, being a widow with two children, and having $1,600 in money, joined with her brother, Neil McIntyre, in the purchase of 152.84 acres of land known as the "Bellows Farm," for the purpose, as she claimed, of making it a home for herself and children, and the said Neil, who was a bachelor; that the land cost $2,100, she contributing $1,600, and said Neil $500, of the purchase money; that it was understood they should own said land as tenants in common, but said Neil, without the knowledge or consent of appellant, took the title to himself individually; that the deed was so taken February 6, 1869, and soon after recorded on the land records of Carroll county; that immediately after the acquisition of said land, appellant and her family and said Neil moved into the house on the premises, and from that time until the summer of 1881 continued to occupy it, all together, as one family, appellant being the housekeeper, and said Neil having control and management of the farm. It does not appear that she assumed or exercised any control or management of the premises or crops grown; or was in any way known, except as housekeeper for her brother. Neil was the owner of record, in possession, and in the actual control and management of the premises; disposed of the crops, and assumed to be the exclusive owner at the time of the loan by Mark of the money secured by the trust deed to Ashway. The premises were about to be sold upon a trust deed upon the whole land executed by said Neil to one Becker to secure a loan from Gillispie, and said Neil applied to Ashway for a loan upon the land to pay off such prior encumbrance. This being refused, an arrangement was subsequently made by which the said Neil agreed to and did convey the land to his brother, Daniel McIntyre, and the loan was made by Ashway to him of the money of Mrs. Mark, and the trust deed to Ashway, as trustee, taken to secure the same. This was on the 26th day of March, 1879. It appears, therefore, that there was nothing but the bare fact that appellant resided with her children upon the premises, ostensibly as the housekeeper of her brother Neil, to put them or anyone upon inquiry. This condition had continued from the spring of A. D. 1869, when they went into possession. That the loan by appellee Ashway for Mrs. Mark was made in perfect good faith, and without any actual notice of any claim of appellant to the land in controversy, is abundantly shown by the evidence. If appellant was, at the time of taking the trus

deed by Ashway, in open and visible possession of the land, the law would charge appellees Ashway and Marks with notice of her equitable interest. Or, if the circumstances were such that an ordinarily prudent and cautious man would have inquired as to her claim upon the land, they will be held to have been bound to make inquiry, and be chargeable with such notice as diligent inquiry would disclose. Persons acquiring title to or liens upon land cannot shut their eyes willfully or negligently, where proper observation would lead to knowledge of the rights of others, and then be heard to insist they had no notice of that which, by the exercise of ordinary care and prudence, would have been apparent to them. The possession, however, which will protect the holder of an equitable title, must be such as to put purchasers upon inquiry which, if followed, would lead to notice of such equity.

It will be unnecessary to review here the numerous adjudications upon this subject. It will be found that at last each case must be determined by the circumstances of that particular case. The chancellor was called upon to say whether the possession of appellant was such as should, under the rule, have put the appellees upon inquiry, and he determined it in the negative, and with that finding we are not dissatisfied. Appellant had permitted, for over ten years, the title to remain of record in her brother. Other mortgages or trust deeds, securing substantially an amount equal to one-half the value of the land, had been executed by the apparent owner, and for some years remained of record, unchallenged by her. She had permitted Neil McIntyre, who was invested with the legal title, to exercise, so far as the public could see, exclusive control and management of the farm and its products, without objection by her, or the assertion of any right on her own behalf.

While she, to all appearances, was simply the housekeeper for her brother, and, so far as shown by the proof, apparently to the world occupied the premises in no other capacity, we are of opinion that, under these circumstances, apellee Ashway was warranted in relying upon the record and the combined declaration of Neil and Daniel McIntyre as to the state of the title, and that there was no such condition of affairs apparent as, in the exercise of common prudence, would suggest that inquiry would disclose any equitable title in appellant to this land.

As to the appellee, Daniel McIntyre, we are of opinion that the decree should be reversed in part. It is true that the evidence is conflicting; but, after careful consideration of it, we are satisfied that the decided weight of the evidence sustains the allegations of appellant's bill of complaint.

It will serve no good end to go into an extended discussion of the evidence, but it will be sufficient to say that appellant and Neil McIntyre both testify to the principal fact that $1,600 of appellant's money went into the purchase, and that the premises first bought were intended for a home for

L

herself and family; and they are corroborated by Bankin, whose advice appellant sought in reference to the investment, and by others; while the evidence in contradiction consists, in the main, of declarations of appellant, testified to after a considerable lapse of time, and many of them, when when considered in the lighl of the surrounding circumstances, really not necessarily inconsistent with the theory of appellant's case. She is represented as at various times calling the farm Neil's farm; on several occasions saying that she had loaned her brother Neil her money; that she had trusted her brother, and had nothing to show for it, and like expressions. Five witnesses thus testify to conversations of appellant at various times from about the time of the purchase up to within a few years of the litigation. Some of them say she "claimed" to have loaned her money to said Neil, without giving her language, and all testifying to loose conversations, occurring several years before giving their testimony, relating to subjects in which they had no personal interest, and very few of them pretend to give the particular phraseology, or to reproduce the exact conversation in which the language was employed. In many of the declarations testified to, the change of a word, or the form of expression, would render it consistent with the theory of appellant's claim to the land. Of the same character is the evidence introduced by appellant of declarations of appellee, Daniel McIntyre, alleged to have been made at various times prior to this litigation some of which will be further considered hereafter. This testimony must be received with great caution, and, of itself, would not be sufficient to entitle appellant to recover; but much of it is strongly corroborative of the testimony of appellant and Neil McIntyre, both go to the main fact, and as to Daniel's knowledge of the equitable interest of appellant in the land.

We are satisfied from the evidence that, Daniel McIntyre must have known of the equitable rights of appellant, and of the purpose and object of the purchase, and the character of her occupancy. Appellant testifies that before the purchase, Daniel McIntyre, who was also her brother, wanted to know what she was going to do with her money, and that she then told him, she and her brother Neil contemplated purchasing the Bellows farin for a home, and he approved of it. Afterwards, when ill, she was worrying about her children, and again her interest in the land was the subject of conversation between them. Neil McIntyre testifies to a full understanding on the part of Daniel of Mrs. Harris' relations to this farm, both before and after the purchase. Shortly after the purchase, in the summer of 1869, Robinson, assessor of taxes, finding the title in Neil's name, told Daniel about it, and told him that, as he was appellant's elder brother, he ought to advise her what to do, as her money might be lost if Neil should die; to which Daniel replied, in substance, "He guessed they could attend to their own business, if other people let them alone." Another

witness testified that Daniel said he knew Mrs. Harris (appellant) had money invested in the place; another that he said, in speaking of the farm, "It is a place Neil and my sister boughtshe put in some $1,500 or $1,600;" another that he said, in speaking of a controversy over a logchain, if Neil had his debts paid, and Annie (appellant) had her money out of the farm, Neil wouldn't have money enough left to buy a logchain; another, that Daniel said to him that "the Bellows farm belonged to his sister, Annie;" and another that he asked Daniel how he was going to get possession of the farm, and said to him, “You know Mrs. Harris' money is in there," to which Daniel replied he knew her money was in the land, but she had nothing to show for it; and other witnesses testify to similar statements and declarations, made at various times between the purchase in 1869, and the filing of appellant's bill.

It is just to say that Daniel McIntyre denies having made these statements, and all knowledge of appellant's having any interest, legal or equitable, in the land; but insists that whatever money Neil received of appellant was as a loan. We think, however, that the testimony, when all considered, clearly preponderates in appellant's favor. Nor can the fact that said Neil McIntyre mortgaged the premises to Bemis and Gillispie militate against this view. It is doubtful if appellant knew of them prior to the conveyance of the land to her brother Daniel. There is abundant evidence to establish that she knew nothing of any advances by Daniel to Neil on account of this land. Both of the brothers seem to have sedulously kept that knowledge from her. Neil swears positively that he purposely kept her in ignorance of his acts, and Daniel nowhere testifies to having told her of his advances, or of any interest be claimed in the land. The witness Kelly swears that three years before giving his testimony Daniel told him that appellant did not know Neil borrowed money on the land, and he (Daniel) did not believe she knew it then. After Neil had deeded the land to Daniel, and at a time when Daniel received $500 as damages for a right of way through the land, he said to the witness William Fulton: "Suppose I should meet Annie, what would I say to her?" Witness replied, "Tell her the truth," and Daniel replied, "I can't meet her." She testifies that she had no knowledge whatever of any advances by Daniel, or of any mortgages on the land, or of the conveyance to Daniel, until in 1881.

As between appellant and said Neil the execution of these mortgases, to which she in no way consented, could not defeat her equitable title; and Danie having, as we have found, notice of her rights at the time he took his deed, stands in no better position. It is, however, insisted that the bill proceeds upon an express trust created by agreement; that as it is alleged in the bill of complaint that it was expressly agreed and understood that appellant and said Neil should purchase

the land, and hold it as tenants in common, in proportion of sixteen to five parts, etc., that the proof does not sustain the bill, and also that the case falls within the statute of frauds. This, we think, is a misapprehension. It is true the bill alleges the fact stated, and that appellant and Neil McIntyre were to own the land in the proportion, that each advanced of the purchase money; that this was not done, said Neil taking the title in his own name. The facts proved show a resulting trust. As said by this court in Smith v. Smith, 85 Ill. Ill. 189, "it was none the less such a trust because the money was paid in pursuance of a prior express contract between the parties." The agreement was not that said Neil should convey to her, but that they should purchase and own the land in the proportion that each contributed to the purchase money; and when Neil, acting for both, took the title to himself in fraud of her rights, he held the title so acquired in trust for her in the same proportion the money she paid bore to the whole consideration paid. Smith v. Smith, supra; Springer v. Springer, 2 N. E. Rep. 527, (opinion filed September 28, 1885.)

A resulting trust arises by implication of law when land has been purchased with the money of one person, and the deed taken to another, who is a stranger; that is, not a wife or child, or standing in that relation. Appellant was a stranger within this rule. Perry, Trusts, 143; 2 Washb. Real Prop. 441; 4 Kent, Comm. 306. It cannot be material whether the complainant is entitled in equity to the whole land, or only a moiety. If a joint purchase is made in the name of one of the purchasers, and the other pays his share of the purchase money, equity will lay hold of the circumstance of the title being in one only, and a resulting trust will be declared in favor of the other for his share. 2 Story, Eq. 1206. The trust here arises upon the allegation and proofs of the ownership of the funds used in making the purchase, and does not depend upon the contract of the parties made anterior thereto, and hence is not affected by the statute of frauds. Wallace v. Carpenter, 85 Ill. 590; Ward v. Armstrong, 84 III. 151; McDonald v. Stow, 109 Ill. 44.

It is next argued that a court of equity will not enforce this trust because of its staleness, and the laches of appellant in asserting her rights. We have already adverted to some of the features of the case bearing upon this question, and it will be unnecessary to go over them again. However, it appears that the deed to the Bellows' farm was made in February, 1869, and possession taken, as already described, in the spring of that year, and that appellant with her children resided upon the land with her brother Neil until 1881, and, upon his abandoning the farm in the summer of that year she continued in possession, and still resides thereon. The deed from Neil McIntyre to Daniel McIntyre was made March 28, 1879. The bill in this case was filed December 16, 1881. It is the settled doctrine that courts of equity will not en

fore resulting trusts after an unreasonable delay in seeking their enforcement, unless there is shown an equitable excuse for the delay. Perry, Trusts, 141; 2 Story, Eq. Jur. 1520.

When the statute fixes the time within which the claim would be barred if asserted at law, courts of equity will refer to the statute as the means of assertaining the reasonable period in which the bar will be complete in equity; thus, by analogy, following the law. In cases, however, where there is no statute applicable, the time in which a party will be barred from relief in a court of equity must necessarily depend upon the peculiar circumstances of each case. Castner v. Walrod, 83 Ill. 171; Kane Co. v. Herrington, 50 Ill. 239, and authorities cited. These principles are sanctioned by an unbroken line of decisions, and it will need the citation of no further authority to sustain them. It is, however, to be observed that mere lapse of time, however great, will not bar a recovery if an excuse therefor be given which takes hold upon the conscience of the chancellor, and is such as renders it inequitable that the bar should be interposed. As we have seen, when Neil McIntyre and appellant moved upon this land known as the Bellows farm, it was understood between them that it had been purchased for a home for herself and children, and her brother Neil. They were to occupy as one family, while owning the land as tenants in common. The occupancy was in fact under that agreement until in the summer of 1881, when said Neil abandoned the premises; and while appellant may have so permitted said Neil to control and manage the farm that, with the title in his name, she would be precluded from asserting her title as against strangers who might become purchasers from or acquire liens thereon through said Neil, without notice, yet, as between themselves, the holding of Neil was in no sense hostile or adverse to her. She was in the actual occupancy under an express stipulation and agreement as to the holding. Daniel McIntyre, as we have seen, had actual notice, not only of her equitable title, but the character of her possession-the purpose and object of the purchase,-and occupancy of the land, and he took whatever title he acquired by his deed with all the infirmities of the title of his grantor, Neil McIntyre.

Again, it is apparent from the record that appellant relied implicitly upon her brother Neil from the inception of the transactions between them. He, as shown by his own testimony, and that of appellant as well, persistently deceived her as to his dealings in respect to this land. We think it is shown that the fact of his taking the deed to himself, the execution of the trust deed to Becker, the mortgaging to Daniel in 1878, and the sale and conveyance to Daniel in 1879, was, by artifice and the most shameless duplicity kept from her knowledge. Nor does it seem quite clear that Daniel McIntyre was wholly guiltless of the deception practiced upon appellant. Be

that, however, as it may, as late as the fall of 1879 or 1880,-it does not clearly appear which,when the rent corn was being hauled to Daniel from this place, she inquired why Daniel was getting the corn, and Neil explained to her that he owed Daniel, and might as well pay him off that way as to haul it to market and bring him the money. We cannot go further into the testimony, but the whole record shows that appellant had great confidence in her brother, and trusted implicitly to his management for her in respect to this property, and that the trust thus reposed was shamefully betrayed. Daniel had been told by Robinson of his duty as elder brother to advise appellant so she might not lose her money. He had applied, in substance, that they could manage their own business if other people would let them alone; and with full knowledge, as we find from the weight of testimony that the morey his sister had received as the proceeds of a policy on the life of her deceased husband had been used in the purchase of a farm as a home for herself and children he, in 1875, to secure a debt from Neil to himself, took a mortgage on this land, and afterwards in March, 1879, assumed the trust deed given to Becker to secure the Gillispie debt, and took an absolute conveyance from Neil to himself of all this land, including the 40-acre tract mentioned in the bill, without, according to his own showing, giving appellant any notice, or saying a word to her upon the subject. It appears, it is true, that appellant was told shortly before the making of the deed from Neil to Daniel that the land was advertised for sale, under the Becker trust deed, but it is not shown that she was then told the state of the title, or how, if at all such sale, if made, would affect her interest in the land.

In no view of the case, accepting as we do what we regard as the preponderance of the evidence, was there such laches, even if Daniel is in position to set it up, as would preclude appellant from enforcing this trust in a court of equity as to the 152.84 acres known as the "Bellows Farm," as against the said Neil and Daniel McIntyre. As to the 40-acre tract afterwards purchased, as it is alleged by appellant and said Neil, and paid for out of the proceeds of the timber cut from the Bellows farm, no such equities arise. It does not satisfactorily appear that Daniel had any notice of any equitable title of appellant thereto, or that she furnished any portion of the purchase money. This tract was disconnected from the other lands. Appellant never was, so far as shown by the evidence, in the actual possession of it. It was included in the deed of March 26, 1879, from Neil to Daniel, and we think, under that deed, he took the title disincumbered by any equities appellant might have had therein.

We are of opinion that the decree of the circuit court should have found appellant equitably entitled to 16-21 parts of said tract of land known as the "Bellows Farm," and conveyed by Sarah Bel