Movan v. Hays

The Chancellor. The objection is well taken that the assignees of Movan are not parties to the bill. The interest claimed by the bill passed to the assignees, and though they afterwards re-assigned to Movan all the remaining interest of his estate, yet, unless it was done, which does not [342] appear in this case, with the assent of all the creditors of Movan, having an interest in the estate so assigned in trust, it was a manifest breach of trust, and cannot be regarded as . valid. But admittingthe bill to have been brought by the assignees, (and, on this assumed point, to save litigation, my opinion is requested,) yet, as the agreement set up in the bill is denied by the answer, and is contradictory to the deed from the plaintiffs to the defendants, it cannot be supported by parol proof. The statute of frauds is in direct contradiction to this attempt to erect and support a trust by parol evidence. The words of the act are, (act of February 26, 1787, s. 12.,) that “all declarations or creations of trusts of any lands shall be manifested and proved by some writing, signed by the party enabled by law to declare such trust, or else they shall be utterly void.” No doubt the distinction is a just one between an agreement and a trust under the statute of frauds, and that a trust need not, like an agreement, be constituted or created by writing. It is sufficient to show, by written evidence under the party’s hand, the existence of the trust. It is sufficient that the trust be manifested and.provedby writing, as by a letter acknowledging the trust. (3 Ves. jun. 707. 12 Ves. 74.) But the difficulty is, that here is no manifestation, in writing, of any such trust as is charged in the bill. The writings show nothing but a plain absolute deed, in fee, from the plaintiffs to the defendant, for the consideration of 2,500 dollars, and with covenants of warranty; and a plain mortgage, in the ordinary form, from the defendant and his wife to the plaintiffs, with the usual power to sell, and made to secure the payment of a bond for 1,248 dollars and 50 cents, payable . in one year thereafter. The deed and mortgage both bear date the 5th of January, 1799, and though the deed was recorded in July, 1801, the mortgage was not registered until July, 1810. To permit such a clear, intelligible, and ordinary transaction, to be changed by parol proof, into the [343] special trust and agreement set up by the plaintiffs, (and which is the ground of the bill,) would be, in effect, to repeal that part of the statute of frauds to which I have referred. The rule is well established in this court, as well as at law, that parol evidence is inadmissible to disannul or substantially vary a written agreement, except upon the ground of mistake or fraud. The cases of Irnham v. Child, (1 Bro. 92.,) and of Hare v. Shearwood, (1 Ves. jun. 241. 3 Bro. 168.,) are not unlike to this; those were cases of an attempt to support, by parol evidence, an agreement to redeem, as having accompanied the grant of an annuity; and the attempt was overruled as being in contradiction to the deed. The case of Hutchins v. Lee, (1 Atk. 447.,) on which some reliance seemed to be placed, is not in opposition to this doctrine ; for there, as Lord Hardmicke observed, all the appearances of an intended trust were upon the face of the deed, and there were declarations and recitals in the deed, consistent with the trust set up, and evidence, or a manifestation of it, and therefore the parol evidence was consistent with the deed, and proper to avoid the fraud which was intended. . I should doubt extremely of the sufficiency of the parol proof, if it were admissible ; but, without deciding upon its force, I hold it to be utterly inadmissible, as being contrary to the statute of frauds; and the bill must, consequently, be dismissed, with costs. Decree accordingly.