Dorr v. Clapp

Holmes, J. We are of opinion that the meaning of the agreement is, that, as Russ has advanced all the money for the purchase, he shall have one half of the profit of the venture if there is any, as well as the amount of his advance and interest, and that to this end he shall be owner of one half of the equity until a sale, and then, by implication, that he shall own or be entitled to one half of the proceeds. The defendant contends that, even if this is the meaning of the instrument, yet as there is no mention of Russ’s heirs it must fail of its intent, and give him only a life estate. But we cannot agree to the argument. This is not the case of a formal conveyance creating a trust, as in McElroy v. McElroy, 113 Mass. 509; it is a memorandum of a bargain previously made, and is put in writing to satisfy the statute, Pub. Sts. c. 141, § 1, and to furnish evidence. This is apparent on the face of the writing. It is agreed that the equity in the real estate is, as well as that it shall be, owned by Clapp and Russ in equal shares, and a reason is stated which, even if not true or binding in such a sense as to show a resulting trust, shows a consideration, goes back to the beginning of the transaction, and imports [542] that the understanding as to ownership dates from then. If the paroi evidence is considered, as it seems to have been in Urann v. Coates, 109 Mass. 581, 584, it leads to the same conclusion. The purport of the agreement as applied to the present state of facts, a sale having taken place, is similar to that of the one construed and held sufficient in Urann v. Coates. In the latter, heirs were not mentioned. See also Barrell v. Joy, 16 Mass. 221, 223. Arms v. Ashley, 4 Pick. 71. Scituate v. Hanover, 16 Pick. 222. Fisher v. Fields, 10 Johns. 495. Wright v. Douglass, 3 Seld. 564. Loring v. Palmer, 118 U. S. 321. Lewin, Trusts, (9th ed.) 54, 55. We may add, that in a case of this kind we should go no further than we were compelled to go by binding authority in defeating the plainly expressed meaning of the instrument for want of a technicality which has been done away with altogether in many jurisdictions, and which would be simply vexatious if applied to a memorandum like this. See Lewin, Trusts, (9th ed.) 113. Shep. Touchst. (Prest, ed.) 106. Decree for the plaintiff.