Hunt v. Roberts

Tenney, J. The plaintiff prays, that the defendant may be ordered and decreed to make and execute a bond, to convey to him his interest in the land described in the bill, upon the terms and conditions set forth, as the verbal agreement between the plaintiff and Benjamin Dyer, and the defendant; and that he be ordered and decreed to convey by deed of release to the plaintiff, one quarter part of the same land, on being paid such sum as the Court shall decree to be equitably due, which sum he offers in the bill to pay. The defendant files a general demurrer to the bill, and denies that the Court have jurisdiction of the case, upon the ground, that the bill is for the specific performance of a contract not alleged to be in writing. R. S., c. 96, § 10, clause fourth. It is insisted for the plaintiff, that the Court have power to grant the relief under two heads of equity jurisdiction, as a case of trust and fraud. And it is con-' tended, that the money, which it is alleged in the bill was paid to William Willis, to obtain the deed that was delivered to Dyer, was a loan by the defendant to the plaintiff and Dyer, and created an implied or resulting trust. This proposition cannot be admitted. By the agreement, as stated in the bill, to which the plaintiff, Dyer and the defendant were parties, on the payment of the sum of about $808, by the defendant, which was all that was paid to Willis, a conveyance of the land described in the bond was made to Dyer, and he at the same time gave his promissory [192] note for the balance of the purchase money, secured by a mortgage of the same land; and Dyer thereupon gave a deed of release of the right in equity of redemption to the defendant. According to the allegations in the bill, it was verbally agreed by the parties named, that in consideration that the defendant should thus obtain the title in the land, acquired from Willis under the bond, he should immediately after give his bond to the plaintiff and Dyer, to convey to them each one quarter part of the land, whenever he should be fully paid or indemnified for money then advanced, or which he might subsequently pay, towards the part belonging to them, &c. If this verbal agreement had been in writing, and signed by the defendant, it might have been an effectual declaration of a trust, according to R. S., c. 91, § 31; and if so, it could not have been at the same time, merely a loan of the money which was paid to obtain the deed. And it is not perceived, that it can become a loan, because that which was intended to be the same contract, should fail, because not so executed as to constitute an express trust. Such a construction as that contended for, would in effect defeat the statute, and a supposed trust under an express verbal agreement, when not legally declared, would become entirely effectual, as an implied trust, in another mode. It is again contended, that the assignment by Dyer of an interest in the bond to the plaintiff, created a trust, which was declared in writing, and signed by the party, and this being fully known to the defendant, at the time he advanced the money and became the owner of the equity of redemption, he was bound to execute that trust. If the plaintiff had furnished one half of the money paid to obtain the deed, and the right in equity had remained in Dyer, the latter might have been considered as holding a moiety of the interest thus acquired in trust for the plaintiff. But under the verbal agreement alleged, the title having passed immediately from Dyer to the defendant, in consideration of the money advanced, and the bond from Willis [193] having been cancelled, by the consent of the plaintiff, Dyer held no estate in trust, before his release, and the defendant took the conveyance, subject only to his verbal contract, and consequently charged with no trust. Is the plaintiff entitled to relief, on the ground that the defendant fraudulently refused to give to him the bond, after having obtained the right in equity of redemption of the land ? It is insisted that this case is something more than a part performance of the verbal contract; that Ingersoll having authority to deliver the deed from Dyer to the defendant, only on the fulfilment of the condition, that the bond should be given to the plaintiff, he was persuaded by the defendant to deliver the deed, under the promise that the bond should be given immediately after. It is alleged in the bill, that after the delivery of Dyer’s deed to the defendant, the bond was demanded by the plaintiff, and no objection made that the deed was not fully effectual; but the fraud relied upon, is the refusal to execute and deliver the bond. This case does not differ essentially from the case of Wilton v. Harwood, cited for the defendant, in the principles involved. It is stated in the opinion of the Court in that case, “if the Court were to decree specific performance of a verbal contract for the sale of real estate, on the ground, that after part performance, it was a fraud upon one party, for the other to refuse to execute a conveyance, the effect would be to assume under this clause of the statute, the very jurisdiction, intentionally denied under another and more appropriate clause.” The plaintiff having consented that the title should be in the defendant, in consideration of a verbal agreement, that ho would execute the bond according to that agreement, and having failed to obtain the bond, he cannot have redress in a mode which the law does not authorize. Demurrer sustained. — Bill dismissed with costs.