Dorsey v. Clarke

Dorsey, J. delivered the opinion of the Court. The statute of frauds and perjuries enacts that ail declarations and creations of trusts ot> confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will and testament, or else they shall be utterly void and of none effect; provided that where any conveyance shall be made by which a trust or confidence shall or may arise or result, by the implication or construction of law, such confidence or trust shall be of the like force and effect, as the same would have been if the statute had not been made. Can the decree appealed from be sustained on the ground of a trust resulting in favour ot the complainánts by construction of law? If a man purchases an estate, and pays the money, but takes the deed in the name ot another, a trust results by construction of law to the man who paid the money; and if the nominal purchaser refuses to execute a declaration of trust, the payment of the consideration money may be proved by parol, as before the statute. The payment of the money is the foundation of the trust. Bartlett vs. Pickersgill, cited in note to 4 East, 577. Willis vs. Willis, 2 Atk. 71. Lloyd vs. Spillett, Ibid 150. The counsel for the appellees have contended, that a resulting trust in this case is established, not only by the testimony of Clarke, but by the entries from the books of Richard Dorsey. The witness proves that Dorsey informed him that he had bought the land to benefit Yieldhall, and [557] if Fieldhall would pay him the purchase money, with interest, he would convey to him the land. Taking this evidence in its utmost latitude, by considering it as proving an agreement between Fieldhall and Dorsey, it could only operate to set up a trust on the foundation of a special contract between the parties; and to permit such a conventional trust to be proved by parol, would subvert the statute of frauds and perjuries, Where a man employs an agent by parol, to buy an estate, who buys it accordingly, and no part Of the consideration is paid by the principal, and there is no written agreement between the parties, he cannot compel the agent to convey the estate to him, as that would be in the teeth of the statute. Bartlett vs. Pickersgill. Neither do the entries from the books of Dorsey establish the facts that the purchase money was loaned by Dorsey to Fieldhall. Tield-hall is not made debtor for the same, and the entries are such as any purchaser might make with a view of showing his disbursements, and the state of his property. And if the charge of rent in the entry is referable to Fieldhall, it establishes the relation of landlord and tenant between Dorsey and him, which is inconsistent with the existence of a resulting trust in favour of the complainants. It may be further remarked, that the construction put upon this entry by the counsel For the appellees, is at variance with their other proof in the cause, we mean the evidence of Clarke, which proves, if it proves any thing, a conventional trust. We hold, therefore, that these entries do not plainly indicate that the purchase money was paid by Field-halland the authorities are clear that the payment of the money by the cestui que trust must be clearly proved, otherwise you render insecure titles depending on deeds and other written documents. Willis vs. Willis, 2 Atk. 70. Lench vs. Lench, 10 Ves. 517. The next question is, was there any agreement between Dorsey and Fieldhall that the former should convey his interest in Norwood’s Fancy to the latter, on the payment of the money, (and interest,) which Dorsey paid for the same; and was the agreement partly executed so as to take the case out of the statute? Whether the liberal offer of Dorsey, as detailed in the testimony of Clarke, was accepted by Fieldhall, so as to constitute a contract between the parties, does not appear in proof. If such a contract was proved, and Fieldhall put in possession of the land in execution of the agreement, we should not call in question the authority of a court of chancery to enforce if It has been urged that the possession of the land by Fieldhall sufficient ly proves the case. We do not think so. The bill does not charge that Fieldhall was in the possession under the agreement, though in its interrogating part it calls on the defendants to answer, whether Dorsey ever dispossessed Fieldhall of the land, and whether Fieldhall did not remain in quiet and uninterrupted possession of the same? The defendants, who were of age, answer that they know [558] nothing of the transaction mentioned in the bill, or the circumstances connected with it, but that it appears from the books of D or sty that he annually charged Yieldhall with rent. .If' the answer should be considered as impliedly admitting that Yieldhall was in possession of the land, it refers such possession, to a- contract essentially different from an agreement to convey. Upon the whole it is the opinion of a majority of the court, that the decree of the chancellor be reversed. Johnson, J. dissented. DECREE REVERSED.