Chenoweth & Johnson v. Lewis

By the Court, Lord, O. J.: The view we take of this case renders it unnecessary to consider several questions which were discussed at the argument. The pleadings, taken together, exhibit a state of facts from which the law raises a resulting trust in favor of Mrs. Wagner, of an undivided equitable interest in the land in question. [152] It is true that parol evidence is admissible to establish such a trust, but it is also well settled that the interest of the cestwi qui trust cannot be conveyed by parol. (Perry on Trusts, Sec. 79, and authorities cited.) The interest of the cestuA qiá trust is an equitable interest in land, and a sale or release of the same can only be proved by a conveyance, or other instrument in writing, subscribed by the party granting or releasing the-same, or by his lawful agent under written authority, and executed with such formalities as are required by law. Nor is any contract or agreement by the cestui qui trust, for the sale of such equitable estate' or interest in land, valid, or admissible as evidence, unless some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged, or by his lawfully authorized agent. (Civil Code, sec. 775.) The equitable estate of Mrs. Wagner is admitted, and existed at the time the verbal agreement was made with the appellants, unless she previously released the same by proper instrument in writing, to the respondent, J esse B. Lewis, in consideration of the real and personal property conveyed to her as alleged. It is unnecessary, however, to consider that question. The agreement was for the sale of an equitable estate or interest in land, which, under the provision of our statute, above cited, is required to be in writing. (See, also, Browne on Frauds, sections 226 to 229; Hughes v. Moore, 7 Cranch, 176; Richards v. Richards, 9 Gray, 313; 3 Sum., 435; Millard v. Hathaway, 27 Cal., 127.) It follows that the judgment of the court below must be affirmed. Judgment affirmed.