Caple v. McCollum

G-OLDTHWÁITE, J. The first question presented on the record is, fis to the action of the chancellor in overruling the demurrer to-the bill; the-object.of which was, to declare a parol trust ppbn lands, and, as an incident to that relief, to enjoin a judgment at law, which had.hSfen rendered in favor of the trustees against the cestui que^eust. _The bill charges, that the land of the complaina^tliawing' been levied on by execution, the defendant Oaple, •Icnowin^his ability to pay the same, and that he had only boon prevented from doing so -by sickness, agreed as a friend to bid off the land, -and hold it in trust for him, — that hewould take no deed, if the complainant was able to pay off the executions before the amount bid should be required of him by the sheriff; and at all events, that he would re-convey to the complainant on the repayment of the amount bid by him. This part of the bill is selected’ for the operation of the demurrer ; -and it is urged in this court, that it is impossible to say from these charges whether the agreement on the part of Caple was, to re-convey on the payment of the executions, or on the repayment of the amount bid by him. We do not consider it necessary to determine this question, for the reason, that whether we -consider it in the one aspect or the other is entirely immaterial, as the bill also charges that the money was not paid by Caple, but .was paid by the complainant before any deed was made, and that the amount due on the executions was paid off by Mm. Under these circumstances, it would, in.principle, be the case of land bought and paid for by one person, and the title taken to another ; and a trust would then result to the person who paid the money. — Willis v. Willis, 2 Atk. 71; Bottsford v. Burr, 2 Johns. Ch. 405. But independently of the facts to which we have referred, the equity of the bill is sustainable on other grounds. If the land was bid in by Caple, for the benefit of McCollum ; or, whether it was or not, if before the former paid the amount bid, and took the deed, he received the money from McCol466 lum, and recognized it as tbe money which was to be applied in payment for the land, and it was paid to the sheriff with that understanding, then, as the.p&yment was in fact made by Me* Collum, the trust wo'uld result to him, upon the principle to which wo -have already adverted. These facts are substantially charged by the,bill,'and, if made out by the evidence, would entitle the -complainant to . the relief asked, without reference to the other allegations. Because more is stated in the bill than' may be necessary, will not prevent a party from obtaining relief. Upon the evidence, wo regard the caso as a perfectly clear one. The land was sold on the 5th October, 1840. At the time of the sale, Oaple declared, to more than one person, that he was buying the land for McCollum, and requested them not to bid; and after the salo, he declared, on several occasions, that ho had made the purchase for McCollum, and that he was to have the land if he paid the money by court. The land was worth from three to four thousand dollars, and it was bid off by Oaple at five hundred and ten dollars— scarcely one-sixth of its value. It is proved, too, that Caple had paid nothing up to the 27th of October; and that on that day, the complainant, after having a conference with Oaple, went with him to the sheriff’s office, and there, in his presence, counted out and paid to the sheriff the amount which Oaple had bid for the land — five hundred and ten dollars— which was credited on the execution. If this payment was made in pursuance of an understanding between Oaple and McCollum that it was to pay for the land hid off by the former,.then the case is too plain for argument. The answers of the appellants, however, positively deny this, and assert that Oaple objected to its being regarded or received as a payment for tbe land, and insisted that it should go as an independent payment on tbe execution ; and that it was in fact so paid. We do not regard the answers of either Caple, Hubbert, or Poe, as entitled to any weight, for the reason, that the material facts stated by them are disproved by the evidence of several witnesses. It is, to say tbe least of it singular, that if the objection was raised, not a single person of those present, who were not interested in the matter, has any recollection of it, and every one who was present and [467] has been examined, m relation to what passed upon that occasion, states facts which are opposed to it; and their evidence is corroborated and strengthened by the repeated admissions, subsequently made by both Caple and Hubbert, in effect,that the amount paid at that time was for the land. Indeed, Caple goes further than this, and announces his intention to swindle the appellee out of his • land, mating at the time a calculation of the profits which would result to him from the operation; and Poe also admits that the claim, which he had been instrumental in setting up for the land, was an unjust one. True, there is some conflict of testimony; and where the witnesses examined are as numerous as in the present case, it would ho strange if there was not. But the main facts — that the land was bid off by Caple for the benefit of McCollum, and that the money of the latter paid for the purchase by him, are fully and clearly established. The testimony also establishes, that after the payment was made b^ McCollum, the appellants, Caple, Hubbert, and Poe, enteren into a fraudulent combination, for the' purpose of defrauding him out of his land. If they made the payment, which they allege in their answer, but which they have failed entirely to prove, it would place them in no better situation, as its object was to give color to a fraud. In relation to the statute of frauds and perjuries, it is only necessary to observe, that it has no application to a trust arising by operation of law alone, which can always be established by parol, unless it is prevented by the rules of evidence ; as where it contradicts a written instrument. — Robert on Frauds, 99, 100; Boyd v. McLean, 1 Johns. Ch. R. 582; Willis v. Willis, 2 Atk. 71; German v. Gabbald, 3 Bin. 302. The decree of the chancellor was correct, and must be affirmed at the costs of the appellants.