Bisbee v. Mackay

Rugg, C. J. The plaintiff by this bill seeks to establish a trust for his benefit in lands now held by the defendants under a recorded declaration of trust. The material facts are these: In October, 1908, William A. Bisbee and Joseph E. Barlow entered into a written agreement for the purchase of land for their joint account. The plaintiff furnished $2,500, which appears to have been all the money put into the transaction at that time. The title was to be taken in the name of Barlow, who was to have the active management of the venture and sell the estate for the benefit of both. The plaintiff was to have a one half interest, subject to certain deductions for expenses, and the net proceeds were first to be applied to the repayment with interest of the $2,500 furnished by the plaintiff. By subsequent written agreement another tract of land was substituted for the one first described. These agreements were never recorded. It is plain upon familiar principles that the transactions up to this point raised a trust in favor of Bisbee, and that Barlow held [23] the title charged with the fiduciary duty to carry out the terms of the agreement. Baylies v. Payson, 5 Allen, 473, 488. Barlow failed in essential particulars to perform his part of the contract. On April 13, 1909, he conveyed this tract of land, together with others standing in his name, to one Roche, who was a mere conduit of title, and who in turn at the same time conveyed it to Barlow, William P. Everts and Sidney F. Hooper as trustees under a real estate trust agreement and declaration of trust similar in terms to those under consideration in Williams v. Boston, 208 Mass. 497, and Ricker v. American Loan & Trust Co. 140 Mass. 346. The interest of the real owners was represented by certificates of fractional parts called shares. No value was given for this conveyance from Barlow through the conduit to the trustees, of whom Barlow was one, and all the shares were issued by the trustees to Barlow as payment for the land which he conveyed to them in trust. Barlow did not inform Roche, Everts and Hooper of his contract with Bisbee, and none of them had any knowledge of it. But of course he knew about it himself. Such a conveyance was not to an innocent purchaser for value. It did not have the effect of extinguishing the equitable rights of Bisbee. No consideration was paid in fact. The devices of trustees, a declaration of trust and shares with the powers here vested in the shareholders constituted the association copartners. But, treating those named as trustees as trustees in the strict sense, they were under the circumstances here disclosed affected with the knowledge of Barlow. Shortly after this conveyance Barlow wrote to Bisbee that he deeded the land in trust “with the understanding that one half the profits, when sold, should go to you after refunding you the $2,500 that was due you.” Knowledge of Barlow affected the trustees holding the property with the continuance of the trust in favor of Bisbee. Freeman v. Laing, [1899] 2 Ch. 355, 359. No change was wrought in this respect by the resignation of the three original trustees and the substitution of the present defendants. There was no new conveyance. They took the legal title, according to the terms of the trust declaration, by selection and qualification. There was no new consideration. They took the same estate held by their predecessors charged with the same infirmities. The notice given to their predecessors in this regard [24] affected them. It was not essential to the preservation of the rights of Bisbee that a new notice should be given to each successive trustee as he came into the trust. Smith v. Smith, 2 C. & M. 231. Phipps v. Lovegrove, 16 Eq. 80. Ward v. Duncombe, [1893] A. C. 369. This is not an instance of an innocent purchaser for value relying upon the registry of deeds for his title. That principle is inapplicable to the circumstances of this case. Those who have become purchasers of the shares from Barlow and their successors are not in the position of purchasers of real estate for value without notice. They can stand in no better position in this regard than the trustees. The evidence of interest in the trust being a certificate, which in form of transfer resembles personal property, purchasers for value do not stand on the same footing as purchasers of real estate by deed in reliance upon the record. It is subject in this regard to the infirmities of transfers of personal property. The statute of frauds is inapplicable to the facts here presented. The original agreement was in writing. The plaintiff’s rights rest upon that and are sustained by it throughout. There is nothing in the record to warrant a finding of loches on the part of the plaintiff. In accordance with the terms of the stipulation a decree may be entered ordering the defendant trustees to pay out of the trust, but not as individuals, the sum of $2,500 with interest at six per cent from November, 1908, without costs. So ordered.