Desmond v. Myers

Grant, J. (after stating the facts). Mr. Myers had no enforceable trust in this land. 2 How. Stat. § 5569: “When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” But 'Mrs. Myers recognized her moral obligation to carry out the parol trust reposed in her by her husband. She executed it by deeding the land before complainant had obtained any lien upon it. Such a trustee is entitled, in both law and morals, to recognize the trust, ■and to convey to his cestui que trust at any time before a valid lien has been placed upon the land. Where such a transaction is, as in this case, stamped with honesty, the creditors of the trustee have no rights superior to those of the party who paid for the land, and to whom it had been conveyed before any lien has attached. Why should one keep for his creditors property which in honor belongs to another? Popendick v. Frobenius, 66 Mich. 317; Cottrell v. Smith, 63 Iowa, 181; Patton v. Chamberlain, 44 Mich. 5. When the trust, though not enforceable by reason of the statute, has been carried out, the question under the statute of frauds has been eliminated, and becomes immaterial. Sackett v. Spencer, 65 Pa. St. 89; Barber v. Milner, 43 Mich. 248; Moore v. Crawford, 130 U. S. 122. In the last case, at page 129, the court say: “There is no rule of law which prevents a party from performing a promise which could not be legally enforced, or which will permit a party, morally, but not legally, hound to do a certain act or thing, upon the act or thing being done, to recall it, to the prejudice of the promisee, [440] on the plea that the promise, while still executory, could not, by reason of some technical rule of law, have been enforced by action.” We, of course, are not passing upon a case where there is actual fraud, or where credit has been extended by the creditor upon the faith that his debtor owns the land. Decree affirmed, with costs. Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.