Lessee of German v. Gabbald

Tilghman C. J. after stating the facts, delivered his opinion as follows: The objection to the parol evidence is founded on our act for prevention of frauds and perjuries. This act is in some parts copied from the English statute of frauds and perjuries, but the likeness does not hold throughout. The first section of our act contains the first three sections of the English statute, and so far as concerns the present question, enacts, that no estates or interests, either of freehold, or term for years, of, or in, any messuages, lands &c., shall be assigned, granted, or surrendered unless by deed or note in. writing, signed by the parties so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. This provision seems to apply rather to legal estates than to trusts, and it was so considered by the English legislature, for they have added a provision with respect to trusts in the 7th and 8th sections of their statute, which is entirely omitted in our act of assembly. By the 7th section of the statute, all declarations or creations of trusts, or confidences of any lands, shall be manifested and proved by some writing signed by the party who is intitled to create such trust by his last will in writing, or else they shall be void; but the 8th section declares, that where the trust arises by implication or [305] construction of law, or is transferred or extinguished by act or operation of law, it shall be of the same effect as if the "statute had not been made. Now if our act does not comprehend the case of trusts, there is an end of the question, because there will be nothing to prevent parol proof of any thing by which a trust may be inferred. But supposing it to be as comprehensive as the English statute, still parol evidence may be given to establish a trust, which arises by implication of law. In the case of Lloyd et al. v. Spiller et al. 2 Atk. 148., lord Hardwicke says, that where an estate is purchased in the name of one person, with the money of another, or in cases of fraud, and where transactions have been carried on mala fide, there is a resulting trust by operation of law. In the present case, the money with which the house was purchased was not the money of Mary Beere; she had but an interest in it for life, and after her death it belonged to her son. If she acted honestly, and meant the house to go, as the (money would have gone by her husband’s will, a trust resulted for her son; but if she meant to divert the money from its proper channel, and convert the property to her own use, she was guilty of a fraud, and in that case also, according to lord Hardwicks's opinion, there was a resulting trust. Whatever were her intentions, the fact of her having used the money of another person might be proved by her confessions, which certainly were evidence against herself, and those who claimed under her by virtue of her will. Those confessions are not to be considered as a parol declaration of a trust by her, but as evidence of a fact, by virtue of which a trust resulted by operation of law. The case cited by the defendant’s counsel from 1 Dall. 193., Gregory’s Lessee v. Setter, determined in this court, is directly in point. There parol evidence was admitted,to prove a woman’s declarations, that she had purchased a house, and taken the deed in her own name, with the money of her deceased husband, part of which belonged to her children. I therefore consider the law to be well settled on the point which was reserved, and am clearly of opinion that the evidence was properly admitted. Yeates J. concurred. Br.ackenr.idge J. of the same opinion. Judgment for defendant»