McCandless v. Warner

Johnson, President: The depositions show, that Warner many times stated, that he had bought one half of said property for Mrs. McCandless. Mrs. McCandless in her deposition shows clearly and conclusivély, that she wrote the letter of which Warner speaks in his answer, and sent it to Mr. Needham before and not after the sale, and exhibits the letter, which she says Mr. Needham handed to her to be used in this suit. She says : “The property was purchased by JDr. Warner to secure the one half for me. When I knew the property would be sold, I saw Dr. Warner and asked him if he could in any way secui’e my half for me. I told him 1 could take care of the Need-ham claim myself. On leaving he said he would see what could be done on the day of saleand after the sale he told me he had bought the property to secure my half; said he would take care of it until the debts Avere paid, and then hand it over to me. I wanted him in some way to secure my half. I do not remember all the conversation, but I remember that distinctly, for that is what I wanted when I told him I would take care of the Needham claim ; he told me to write to Mr. Needham, and see if he, Mr. Needham, was willing to give me time. I wrote to Mr. Needham July 29, 1877, as suggested by Dr. Warner and file herewith, the original letter that I so wrote to be filed herewith as a part of my deposition, marked ‘No. 1, Mrs. S. Me.’ Iam not confident it was sent the day it was written, but it was sent before the sale; he did not expect an answer until after the sale, but it was promptly answered, which answer was duly received, and was turned over to Z. Warner, in which he, Needham said he would give six, twelve and eighteen months, N the claim was secured. Dr. Warner read the letter and said it was all right.” On cross-examination she says, that it was on the day of the sale, that Warner came to her and told her he had bought the property in to secure one half for her, and would take care of it for her, until it was paid for, and then would turn it over to her. — 769 — J. B. McCandless in his deposition says : “ On the morning of the sale, and after the property was bid to- $1,000.00, or about that, I ashed Dr. 'Warner to aid me in having the' sale adjourned for one week, as there were- parties present who said it would require that length of time to get ready to make the purchase of the property, stating they would bid it to $1,600.00 or $1,700.00 if they got that length of time. Dr. Warner answered in substance, ‘ I have made arrangements,’ or ‘ have a plan,’ I -do not remember which, ‘ by which I expect to save Mrs. McCandless her half of the property,’ but answered further, ‘ I will see Mr. Wolf about getting the sale adjourned.’ He said, ‘I have bid as high, or exceeded the bid, they -allowed me to bid, but if they are satisfied to : allow the sale to be adjourned, 1 am up to this.’ I did not -' know who was meant, other than Mr. Wolfe. After seeing Mr. Wolfe he told me that he, £ Wolfe would not allow his bid to stand if the sale was adjourned over for one week,’' but he, Warner, told me he ‘ would go with me to Mr. Stewart and see what he would do in the matter.’ The sale now. being adjourned over nntil after dinner we wént together to see Mr. Stewart, (Mr. Samuel Stewart was the trustee making the sale;) on the -way out to Mr. Stewart’s together, I learned that Mr. Wolfe and Mr. Stewart were the parties -who were going to take one half off Mr. Warner’s hands, Mr. Warner retaining the other half for Mrs, Me. I mean -by Mrs.. Me. Mrs. McOaudless. I learned of this arrangement principally from Dr. Warner himself. The' conversation carried on between Mr. Warner and Stewart, was to that effect, or rather seemed to be understood. Shortly after the sale, it may be the same evening of the day of sale, or shortly after at least, Dr. Warner told me he thought that-with the man-' agement of Stewart and Wolfe, he -would be able to pay the Needham claim, and the money he had borrowed to make the purchase, within a year or thereabout, and turn over the property to Mrs. Me.” R. J. A. Boreman says : “ I was present at the sale. -R. H. Thomas and my father knowing from an advertisement in the paper that the property was to be sold that day had talked the matter over and concluded to purchase. ■ A short time after the bidding commenced, and both Mr. Warner and our — 770 — selves bad several bids, be came to where R. II. Thomas and myself were standing and requested us not to bid any more as against him as he was buying it in not for himself, 'but for Mrs. McCandless. We at once stopped bidding aud upon the next bid which was his own the property -was knocked down to him by Stewart at I think $1,035.00. * * $1,600.00 is what we concluded the property was worth, and to that amount we would have gone.” R. H. Thomas says: “I do not remember of such conversation having taken place in the presence of Dr. Warner. I got the impression from some one while the sale was still pending, that it was being bid off for the benefit of Mrs. Mc-Candless, consequently stopped bidding. My impression w’as that I got that impression from McCandless. I am satisfied that I was not present at such conversation as detailed in said answer in the presence of Dr. Warner.” W. M. Evans says : “Dr. Warner told him, he purchased one half said property for the benefit of Mrs. McCandless.” To J. Y. Mayhall, Warner said substantially the same thing. C. W. Mayhall, Delia Landley, Ida May Mayhall, in their depositions say : That Dr. Warner in a meeting held in his church at Parkersburg, represented that some of the mem-' bers refused to pay his salary, because he had oil property ; he stated he had no oil property, and had not a foot of oil territory and had simply done for one of his members, what he would do for any of them under like circumstances. E. W. Staples, clerk of the Yolcanic Oil and Coal Company, in his deposition says, he had a conversation with Dr. Warner in the latter part of July, 1877; believes it was on the day the property was advertised for sale under the trust; the conversation took place at Yolcano; the conversation was in reference to back royalty due on the lease; he wished to ascertain on what terms the Yoleanic Oil and Coal Company would adjust the back royalty provided he purchased the property, as he proposed to purchase the property for the benefit of Mrs; McCandless; his recollection is that he said to him, that.he should deliver to the company-one third or one half of all oil produced, until back royalty, aud royalty on current production was paid; he was also to have the — 771 — benefit' of any rebatos, to which he might be entitled. He also’said that as soon as he received from the property what he might pay, he proposed to turn the interest over to Mrs. McCandless. W. C. Stiles, general agent of said Volcanic Oil and Coal Company in his deposition says : “I had a conversation with Mr. ’Warner a few .days after the sale; he visited me at my office for the purpose of arranging to get time to pay the royalty due on the lease at the time of the sale. I called his attention to the fact that the Volcanic Company was creditor to J. B. McCandless for coal furnished to the amount of about $150.00 and used upon said lease; he then explained to me the terms upon which he had bought said lease, saying that he had bought it for Mrs. McCandless, and that after re-payment to him of advances, one half interest was to revert to hpr. He promised to pay the Volcanic Company’s claim for coal above mentioned, before making over said half interest to Mrs. McCandless. Hpon this assurance from him, his application for easy terms on back royalty was acceded to.” W. H. Wolfe says that on the day of the sale, while the sale was in progress, Dr. Warner came to him and asked, if he would take an interest in the property, or buy a part of it. Witness told Warner that, if he bought the property, witness would take an interest with him in it, provided it did not go higher than $1,000.00. After the sale he came to witness and said he had bought the property for $1,050.00. The excess was but small, and he took an interest, for which Warner made him a deed; says there was no arrangment made by him with Warner about purchasing said property before the day of sale.” The deed accompanying Mr. Wolfe’s answer shows, that on the eleventh day of August, 1877, Warner, for the consideration of $525.00, then acknowledged tobe paid, conveyed to Wolfe and Samuel Stewart au undivided half of said leasehold property. . In Warner’s deposition he makes an unsuccessful attempt to explain his connection with said property on the theory that he did not buy the property for Mrs. McCandless. It is hard for him to explain the letter written on the seventh — 772 — .day of. August to D. Needham consistently with his absolute truth and ownership of said one half of lease No. 58. In his answer with reference to that letter, he says : “ It is true as alleged in complainant’s bill that he had a correspondence with said D. Needham in reference to his said debt, and that it is true that he wrote the letter of August seventh, 1877, but- respondent says that it was a confidential communication between him and said D. Needham, and was in in answer to a letter from said D-. Needham to respondent, and was intended- to -express respondent’s private purpose which he entertained at the time he bought said property, and still entertains, to aid Mrs. McCandless out of the proceeds thereof, and of which ■respondent is advised the complainant can take no advantage, either at law or in equity. Respondent says that in. his reference to Mrs. Mac.’s half, he used the language as a convenient reference to the proportion of said property which he had retained himself in making a sale to his co-defendants, "Wolfe and Stewart, and as respondent knew he could better indicate to said Needham what portion he intended to mortgage.” He would have effected, quite as much by his truthful silence, had he not- attempted an explanation of the letter of August 7, 1877. As to the declaration in the church he makes this 'singular explanation in his deposition: “ My recollection of times is different from that of others and I do not recollect the form of the statement I made. I was trying to impress on the minds of my people that I needed my salary, having been informed by some of my stewards that some of the members seemed to think that I was getting money out of the oil-property. If I made, the statement in the form in which these witnesses say I did, it was because I had not put my own money in the property, intending the property to pay for itself, if paid for at all, and I did not consider it mine until it was paid for.” When asked if he had read the testimony of Stiles and Staples, and if he used the language stated by them in conversation, he said: “ At the time referred to by Mr. Staples I had no conversation with him at all, nor had I any conversation with Mr. Stiles in his office a few days after the sale, but some time in October as I now remember, after the new — 773 — well had commenced pumping oil, with Mr. Wolfe and Mr. Stewart I "was in his office and made arrangements tor paying the hack royalty. Mr. Stiles claimed a coal bill .of nearly $200.00, as being against lease 58, and intimated very strongly that he would give me trouble in court, if I did not make some arrangement to pay it; as a matter of economy, as I considered it, I gave him a verbal promise, that when the debts under the trust were paid, then, I would adjust that matter. I have no recollection of saying that-1'would not turn the property over to Mrs. McCaudless until it was paid.” In answer to the question, whether at any time before the sale he promised to purchase the property for Mrs. McCandless, and whether he had any intention of purchasing the property in any capacity until the afternoon of the day of sale, and whether he had since that time said to her or any one else that he had bought the property for her and intended to turn it over to her when the debts were paid, he answered : “ I had no thought or intention of buying the property for Mrs. McCaudless or-any one else, until after 12 o’clock on the day of sale according to the contract between Mr. Wolfe and myself. In the evening after I bought the property, I told Mrs. McCaudless that I had bought the property and sold one half of it to Mr. Wolf; that while I should keep the other half in my possession, I intended to give her all the benefit I could, provided I could make the property pay its debts. There were no arrangements with her before the sale for me to buy the property for her.” In that connection he further said that he had no knowledge of Mrs. McCaudless asserting any claim to the property, since the sale, until she brought this suit. This statement does not agree with his letter to Mrs. McCandless dated April 15,1881, above copied. He flatly contradicts R. J. A. Boreman and says further : “ Mr. Boreman came to me, — I knew some one was bidding, —and asked me it I was bidding on the property. I told him I was. ITe said then he would not bid any more. I told him I hoped he would bid. That is the substance of .it.” Dr. Warner in this statement is not sustained by the facts and circumstances of the case, while Mr. Boreman’s statement is so sustained. Boreman’s statement is probable, — 774 — while Warner’s is not. In answer to the question, whether Mrs. McOandless before the sale did not send for him, and whether he did not go and have a conversation with her, about her pecuniary embarrassments which involved- the property, he answered: “ She came.to my house, and.stated’ that the property was advertised to-be sold, and if sold she would lose everything that she had, and asked me if I could .not-help her in some way. I told her I thought I could, being under the impression, and not asking her, that she had not signed the trust, and said I thought I could save it to her. At her request I went to see Mr. Stewart, and in the conversation with him I learned that she had signed the trust: I then went to see her, and told her, that there was but one way that -I could see to save anything and that was to get some .friend who was engaged in the oil-business to run the property .cm the day of sale as far as possible above the debts.” It certainly would not take a very shrewd man to know, that a person’s property was not in much danger of being lost under a trust-sale, if the party had not executed the deed of trust. Again if the brotherly suggestion- to get some friend to run the property above the debts as much as possible, was really made, its hypocrisy becomes quite apparent, in view of .the fact, that parties were there who would have given $1,600.00 for the property but were induced not to bid against Mr. Warner, because he represented that he was bidding it in for this same-woman and sister, whom he says he was trying to befriend. Being further asked the question, “Bid you not propose to be that friend to buy the property for her. He answered, “Ho Sir.” Further, “Bid you consider yourself the owner of that property after you had bid it in.” Answer, “I did, and as having'a right to do as I-pleased with it, and would not have bought it under any other consideration.” This direct question was put to the witness : “Bid you not buy that property for and on behalf.of Mrs. McOandless; and have you not publicly so stated on divers occasions, both orally and in writing?” He answered : “I bought the property with the thought in my mind, that if I could make it pay the debts, that I — 775 — would out of the after proceeds give to Mrs. McOandless such amounts as I could. I did not buy it as her agent.” The further question was asked him: “Did you not buy the property for Mrs. McOandless ?” He answered : “I bought it for her in that sense, with the secret purpose that if I could pay the debts, that I would give her such benefits of the proceeds as T could, and I proposed after compensating myself for my trouble and expense, to give her such benefit as I could.” If a trust of the kind sought to be set up in the bill in this cause could be proved by parol, I would have no hesitation in saying that it is clearly proved in this cause, that Z. ’Warner after said sale held one half of said leasehold-property in trust for the female plaintiff, and that, when it was cleared of the debts, and the trustee compensated, it should be’turned over to Mrs. McCandless. Whether a party who obtains a deed foi-. valuable consideration, but agrees by parol with the grantor, at the time the deed is made, that he will hold the land in trust for third parties, can have such trust enforced in a court of equity is questionable. (Troll v. Carter, 15 W. Va. 567.) In that case the question was discussed, but not decided, as it was not necessary. ' The same question was alluded to and somewhat discussed in Tichenell v. Jackson & Feather, supra, 460, but was again waived, as its decision was not necessary for there was a written agreement between the parties. The agreement was somewhat vague, but with the' surrounding circumstances it'was held to mean, that the purchaser at the sale, held the land so purchased in trust for the former owner. In that cause we held that if a conveyance be made by A. to B., and at the same time and as a part of the transaction B. executes a writing wherein he declared he purchased the land in trust for E., this constitutes an executed', an express trust and is valid, though C. gave no consideration whatever for being thus made cestui que trust. In Troll v. Carter, 15 W. Va. 567, the qusdre was propounded : Does the omission in our statute of sec. 7 of the English statute of frauds have any effect ? That quoere we will not answer in this case, but will treat the cause as if the said seventh section were in full effect in this State. The instrument in writing required by the statute may be in terms less — 776 — formal than would he required for the creation of a trust, and the making of it is to he regarded as an . entirely independent transaction. It has been held that it may be executed subsequently to the creation of the trust, or even in anticipation of it; or it may be executed subsequently to the death of the grantor. (Browne on the Statue of Frauds, sec. 97.) Letters under the hand of the trustee, distinctly referring to the trust are sufficient manifestations or proof to satisfy the statute. (Browne on the Statute of Frauds, sec. 98.) In Sture v. Sture, 5 Johns. Ch’y 1, cited by counsel for appellant' it was held, that a trust need not be created by writing ; yet to take the case out of the statute of frauds its terms and conditions must be clearly manifested and proved in writing under the hand of the.pai’ty to be charged. In that case the trust was sought to be proved by letters, but the court held them too vague and indefinite to prove the trust. In Forster v. Hale, 3 Ves. 696, it was held, that the statute of frauds requires not that a trust shall be created by writing, but that it shall be proved by wuúting which may be subsequent to the commencement of it. When letters are to raise a trust there must be demonstration that they relate to the subject. In that case a trust was proved by letters, which it' seems to me, were much more vague and indefinite than the letters relied on here. This case was affirmed in- 5 Ves. 308. In Deg v. Deg, 2 P. Wms. 412, it was held, that where. A. receives a sum of money, which -he covenants to lay out in land to be settled for certain ones, and afterwards purchases an estate, which he does not settle, but does by writing own that this purchase was made with the trust money, this binds the estate and is a declaration of trust. In Wilford v. Beazley, 3 Atk. 503, it was held that where there is a complete agreement in writing, and a person who is a party and knows the contents, subscribes it as a witness only, he is bound by it, for it is a signing within the statute. In Smith v. Mathews, 3 D. G. F. & J. 138, it was held that when the court is called upon to establish, or act upon a trust of lands it must not only be manifested and proved by writing signed by the person enabled by law to declare the trust, that there is a trust, but it must also be manifested and proved by writing signed as above what the trust is. In — 777 — that case it was held that the letters and other writing w-ere insufficient to declare the trust. In Hutchinson v. Tindall, 2 Green ch’y. 357, itwasheld that a declaration ot trust requires no formality, so that it be in writing, and have sufficient certainty to be ascertained and executed; and it is not material whether the writing be made as evidence of the trust or not. That where a deed is absolute on its lace, and without any actual consideration paid, if the grantor seeks to. set it aside on the grounds ot fraud, the answer of the defendant setting up a trust, unless directly responsive to the bill, will not be evidence of the trust; but where the grantor files his bill, claiming the deed to be a deed of trust, and the defendant by his answer admits it, the answer, it seems, will he good evidence of the trust, and a sufficient writing to support it. Where a firm which had an account against A. B., brought an action and received judgment thereon, and land of A. B., was sold under the execution and bid oil by W. F., one of the partners in his own name, but with an understanding between him and his partner that he “should account with them for the interest in the land at its reasonable value;” and on the account of A. B., in the book of the firm, the expenses of the action and sale were charged and the rents of the land credited to the partnership. On the dissolution of the firm’ O. S. to whom the firm was indebted, requested the partners to convey the land to him in discharge of his debt, W. F. wrote in the margin of A. B’s. account in the firm’s ledger. “To W. F. he to pay C. S.” and the other partners assigned to C. S. in writing their interest in the land. The accounts between the partners were afterwards settled. Held oh a bill in equity filed by C S. against W. F. to compel him, W. F. to convey the land to C. S. that there was no trust on the land in the hands of W. F. in favor of the other partners, or of C. S. Homer v. Homer, 107 Mass. 82, Morton J. for the court said: “The memorandum on the ledger of the firm is entirely insufficent as a declaration of trust. It does not describe the land; if it is deemed to refer to the land, it does not indicate an intention to hold it in trust; but the more natural import of its language is that the defendant is to hold the land as his own, and pay the plaintiff for his services.” — 778 — A. conveyed his land to B., to whom he was indebted, by an absolute deed, and B. at the same time promised orally to convey or pay to A. any surplus that might remain of the estate or its proceeds after discharge of the debt. B. after-wards told A. that he had made a memorandum to the same effect but never delivered it to him. On B’s death there was found among his valuable papers, a writing, signed by him not addressed to any person by which he “ did agree and bind ” himself to pay the above mentioned surplus to A. Below this writing was the following, also signed by him : “ This memorandum is made for the use of my executor or administrator only; A. has no legal or equitable claim against me or my estate, but on payment of my debt, any balance shall enure to A’s benefit.” Held, that there was a declaration of trust in writing within the meaning of the statute. (Wrann v. Coats, 109 Mass. 581.) Barrell v. Joy, 16 Mass. 221, was an appeal from probate, in which the probate court had passed a decree directing Joy to render an account as executor of the last will of Joseph Barrell, deceased father of complainants. In his capacity as executor Joy had charged himself with but a small amount of property, claiming to hold all the residue of the estate and effects which were once his testator’s as his own estate and property by virtue of conveyances and assignments made to him by the testator in his lifetime, for a valuable consideration. The complainants contended that the property was assigned by the testator, and received by Joy under a confidence and trust between the parties; that after indemnifying Joy for all his lawful claims upon Barrell, on account of debts paid and liabilities assumed for him, the surplus if any should be accounted for to Barrell; and that they as his heirs were now entitled to call him to account, in order that he might be charged, as executor for any balance remaining in his hands. The conveyances of the property from Barrell to Joy were absolute; and it did not appear that there was any bond, covenant, or other declaration in writing, made at the time and tending to show the purpose and intention of the parties to the transaction. But to prove Joy to have received the conveyances in trust, the complainant relied on an indenture made in the lifetime of the testator, and after the said — 779 — conveyances, between Joy on the one part, and Jones, Jeffrey and Barrell on the other part, in which Joy covenants to sell sundry of the estates so conveyed to him, and appropriate a certain part of the proceeds thereof to the discharge of certain claims of the said Jones and others against Barrell. They also produced with the same intent a pamphlet printed and circulated by Joy in answer to one issued by the complainants, in which Joy alludes to the original conveyances as made to him in trust for the testator. Parker, C. J., said ; “The conveyances and assignments were on the face of them, absolute and unqualified; so that, if a trust was intended, it was of a most confidential nature, and exceedingly difficult of proof, if the trustee had chosen to stand upon his strict legal rights, and refrain from any subsequent act, which might show the true character of the transaction. But it seems to be settled by authorities cited at the bar, that any declaration in writing, made by the grantee or assignee of property, at any time after the conveyance, is competent proof that the property was to be holden in trust according to the terms of the declaration, within a fair and liberal construction ot the statute of frauds; and that letters or other papers however informal are sufficient to constitute such declaration. According to this principle we must consider the expressions used in the pamphlet published by Joy, in answer to one previously publishedby the complainants as amounting to an acknowledgment, that the estates and property which he received from Barrell were entrusted to him for certain purposes ; and that he was accountable to Barrell for a just distribution of them, and for any balance remaining after the purposes of the trust were fully answered. * * * But there is in this case much more satisfactory evidence of the accountability of Joy, as trustee, than any which can be derived from confessions extorted by a direct call upon him before the public for an alleged breach of trust and moral duty. The indenture made in October, 1797, furnishes conclusive evidence that notwithstanding Jby’s legal title to the property therein discribed there was a beneficial interest remaining in Barrell. For it can not otherwise be accounted for that Joy should have consented to appropriate the proceeds, after satisfying his own debt to the payment of the large demand of — 780 — Jones, Jeffrey and Russell, against Barrel!. The tenor as well as the effect of that indenture shows very clearly that Joy had taken an assignment of the property, solely with a view to secure himself an indemnity for his advances on account of Barrell; and that it was intended aird expected by the parties, that when Joy was indemnified, either by.pajrment or by the proceeds of the property on a sale, Ban-ell’s right to the estate, or to the residue of the proceeds, should revert to Mm. This is a sufficient declaration in writing, for although not made to Barrel], it is available to him, or his representative.” From the authorities we deduce these principles, that if a party obtain a deed for property for valuable consideration paid by him; under sec. 7 of the English statute of frauds it may be shown, that such party holds the property so conveyed in trust ■ for. another; that such trust need not be created in writing but must be manifested and proved .in writing by the party enabled by law to declare the trust; and such writing must show both the existence of the trust and the terms thereof; the writing to prove such trust need not be made at the time the trust is created, but may be made any time thereafter, and it is not necessary, that it be addressed to the. cestui que trust or to any other person. Letters after the creation of the trust written to any one, in which the trust and the terms thereof are admitted and declared, are a sufficient declaration'of such trust within the statute; and it is not necessary that the trust and the terms thereof shall all appear in one letter or other writing, but if they can be ascertained with reasonable certainty from a number of letters, or from one or more letters and other writings, it is sufficiently proved. In ascertaining the meaning of such writings the court will, if necessary, look to the surrounding circumstances. Without at all considering the parol testimony in this case, relating to the declaration of trust our right to consider the same not being decided in this cause, we shall have no difficulty under the principles above set forth to dispose of this cause. Mrs. McOaudless owned one half of lease 58 and her husband the other half. She with her husband executed a deed of trust on the whole lease to Samuel Stewart, — 781 — trustee. The trustee, about the first of August, 1877, sold the property under said trust, and the appellant, Warner became the purchaser. A deed was made to him therefor. A short time afterwards he convej'ed one undivided half of the said property, in consideration of $525.00, in hand to him paid, to AN. H. AÑolfe and Samuel Stewart. On the seventh day of August, 1877, he writes to D. Needham, who was one of the creditors, secured under the trust-deed, telling him that the property had been sold under the trust, and he had bought it for $1,050.00; that he bought it for the purpose of securing half the property for Mrs. Mac; that another party had taken the other half; that the property did not sell for sufficient to pay all the debts, but in order to pay all the debts the old wells would have to be repaired and a new one bored, which could be done in about four weeks. He further said to him : “ If you desire it we will give you a mortgage on Mrs. Mac’s half, you sending a release of the present mortgage.” Again on the eighth of February, 1879, he wrote Needham another letter in which he told him that “ the property sold for only eighty per cent, of the principal of the debts, and on that account no one has received more than $80.00 on the hundred; this would give you $300.00, or about that. We intended, if we could, to pay the full amount; whether this can he clone or not is an open question. I have consulted Mrs. McCandless, and we have agreed to propose the following, and you can use your own pleasure as to accepting: I will borrow, if I can, $300.00 and give you for the note, and if the price of oil should ever improve so that Sister Mac. can do it, she will pay you $75.00 more.” In the letter written September 16, 1880, among other things he said : “ I have paid nearley $300.00 to Mrs. McCandless; if I had not paid her anything you would be paid. Yesterday her son was after me again for money; will you say now to me that I shall not give her any more until your debt is satisfied? I will obey you ; or you come down and I will turn over the property to you, and step out and let you manage it.” To Mrs. McCandless he wrote April 15, 1881, complaining that he had heard as coming from her unkind criticisms; that she was not only dissatisfied, but thought him dishonest “in the management of this oil interest.” He further says: — 782 — “I do not feel that I have any right to expose myself to unkind criticism without any benefit to myself. 'You have received over $300.00 of money that you would not have received if I had not bought the property. Now one of two things will occur, either I must be free from unkind criticism or I will sell the property, finish paying the'debts, and if there is any surplus left, turn it over to you and have nothing more to do with it; in this matter I am determined.” It is very clear from these letters and the surrounding circumstances, that the letters amount to a sufficient declaration of an express trust within the statute; and it is just as clear that that trust was, that 'Warner, the trustee, should .pay the charges against the property by managing it, that is the one half and after this was done, give the property to the female plaintiff, or if he were compelled to sell it, to pay the charges thereon after a reasonable compensation to himself, the trustee, to give the surplus if any, to Mrs. McCandless the female plaintiff. It seems to me that in the settlement of his trustee accounts Warner should be made whole and allowed a reasonable compensation for his troubles. He has acted badly in denying the trust; but I can see no sufficient reason for denying him- compensation and it is not supposed the court will refuse it on the coming in of the report. It was proper after he had denied the trust, to put the property in the hands of a receiver. It is insisted in agrument by counsel for appellant, that there was no consideration for the agreement, if one was made. It being an express trust it required no consideration to support it. (Tichenell v. Jackson & Feather, supra 460.) It is also insisted by counsel for appellant, that no issue ought to have been directed under the settled law of this State governing issues out of chancery. This is true. There was not such a conflict of evidence as made it doubtful, on which side was the preponderance. The bill set up such a trust substantially, as we have ascertained existed, and vouched the letters of Warner to prove it and its terms. ' The answer does not deny these letters, therefore the court ought not to have directed the issue, but should have pronounced substantially the decree it did render on the verdict of the jury, upon the proofs as they stood at the time the issue was di — 783 — rected. But this is not an error, of which the appellant can complain, as it was not to his prejudice. There is no error in the decree of the circuit court of Wood count}’, for which it should be reversed, and it is.therefore affirmed. AbEIRMED.