FROM COOS CIRCUIT COURT. The questions which arise are upon the admission of the proposed amendments. The objections are principally two: (1) that the amendment changes the cause of action; and (2) that the bill as amended will still be bad as stating a cause of action which cannot be proved by oral testimony, it being understood from the past history of the case that the plaintiff has no other.
The subject-matter of this suit is a tract of land lying in the county of Coos, the title to which is alleged to be in the defendants, one or both of them, and the ownership in the plaintiff. The object of the bill is to protect and enforce the right of the plaintiff to this land. This is the object of the original bill, and the object to the amended bill.
The original bill alleged that the title was taken in the name of Congdon, with an express promise on his part to convey to the plaintiff, when he should have received certain indemnity and been repaid certain advances. Certain facts not alleged in the bill were offered to be proved by oral testimony, from which it is claimed, in connection with the other facts, a trust would result to the plaintiff. It was held that this testimony was rightly excluded because there were no proper allegations in the bill, and the only allegations being of an express trust it was held they could not be proved by oral testimony.
It is proposed to amend the bill by adding the allegation that the land was paid for with the plaintiff's money. I think this is the ordinary case in which some fact necessary to the plaintiff's right of action is by accident or oversight omitted, but in which the court can understand perfectly well what the subject-matter of the suit is, and which is therefore fairly within the terms of our statute of jeofails. Gen. Stats., ch. 207, secs. 8, 9. I cannot doubt, therefore, that the amendment ought to be admitted, so far as this objection is concerned.
But it is said that the bill as amended still sets out an express trust which cannot be proved by oral testimony; and this express trust is said to consist in the agreement to hold the land as security, and to convey it after the security is effected. There is no doubt that the case lies very near the line, and the distinction is pretty nice which places it outside instead of inside of the statute of frauds; but I cannot avoid the conclusion that such is the fair result of our own case of Page v. Page, 8 N.H. 187, and of the other cases on the point. In the present case the plaintiff alleges in the amended bill that he paid $500 of the purchase-money at the time of the conveyance; that the balance was loaned to him by Congdon, who held in his hands money and other property amply sufficient to repay the money loaned; and that all the purchase-money was the plaintiff's money.
Now, on these facts a trust must have resulted to the plaintiff, and the property belonged to him. Undoubtedly, at any moment it might have been seized on execution against the plaintiff, and applied to pay his *Page 282 debts. Pritchard v. Brown, 4 N.H. 397; Jarvis v. Brooks, 27 N.H. 37; Hutchins v. Heywood, 50 N.H. 491. Whether, this money having been so furnished by the plaintiff and the land so belonging to him it would be any defence against a claim on his part to have the land conveyed that the borrowed money had not been replaced, need not now be determined, because the allegation in the bill is that all the stipulations have been performed. It is not a question of enforcing the defendant's express promise, because the plaintiff can rely upon the implied trust. It is not a question of enforcing the plaintiff's undertaking, because that has been performed.
I cannot see the way clear to avoid the effect of those cases without overruling them, which there seems no occasion to do.
The amendment, then, being not objectionable as introducing a new cause of action, and the allegations in it being such that if proved the plaintiff will be entitled to a decree, I think ought to be admitted. Dryden v. Hanway, 31 Md. 254; 1 U.S.D., N.S. 714; Fleming v. McHale,47 Ill. 282; Hutchins v. Heywood, 50 N.H. 491.
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