Bailey v. Irwin

BRICKELL, O. J. Whether the agreement the bill seeks to enforce, so far as it concerns lands, is not offensive to the statute (Code of 1876, § 2199) prohibiting the creation of trusts-in lands otherwise than by writing, is not a question now presented'. The statue is a substantial re-enactment of the seventh and eight sections of the English statute of frauds, though differing in phraseology, and has the same purpose, — the requisition of written evidence of trusts concerning lands, and the prohibition of the enforcement of such trusts resting merely in parol, when they arise from the agreement of the parties, and do not result from the implication or construction of law. Patton v. Beecher, 62 Ala. 579. A defense arising under the statute of frauds, unless upon the face of the bill it is shown the agreement sought to be enforced is not in writing, must be pleaded ; and if not pleaded, and the agreement is admitted, or, if denied, is established by proof, it will be enforced.—Patter 507 son v. Ware, 10 Ala. 444. Tlie statute of frauds was not pleaded by the defendant Irwin; he rested upon a denial of the making of the agreement; and the case is consequently reduced to the inquiry, whether the agreement as alleged is proved. Though the statute of frauds is not pleaded or relied upon, it is essential that the trust, so far as it concerns lands, should be plain and unambiguous, and shown by clear and convincing evidence.—Slocum v. Marshall, 2 Wash. C. C. 397; Mercer v. Stark, 1 Sm. & Mar. Ch. 479. And if it is intended to fasten a trust upon personal property, created verbally, and dependent upon merely oral testimony, the testimony ought to be clear and explicit. — Perry on Trusts, § 77. We have carefully examined the evidence in this cause, and are of opinion that it is too conflicting, vague and indefinite, to establish the agreement alleged. Such was the conclusion of the chancellor, and his decree must be affirmed.