Hammond's Administratrix v. Cadwallader

Napton, Judge, delivered the opinion of the court. The circumstances of this case are materially different from those of Rose v. Bates, 12 Mo. 30. That case proceeded altogether upon the ground of fraud, and it is one of a class of cases in which implied trusts, arising out of fraud, have been enforced notwithstanding the statute which required them to be in writing. The case 'of Brown v. Dyrenger, 1 Rawle, 413; McCulloch v. Cowhe, 5 W. & S. 431; Lees v. Nuttall, 1 Russell & Mylne, 53; Kisler v. Kisler, 2 Watts, 427, and Schmidt v. Gatewood, 2 Rich. Eq. 162, proceed upon the same ground. Where transactions have been tainted with bad faith, there is a resulting trust by operation of law; but the simple violation of a parol contract does not constitute such a breach of faith ; for if such was the law, the statute of frauds would be virtually repealed. It is not sufficient to call the transaction a fraud or a trust; there must be some artifice or trick employed to made it so, and a confidence reposed by one party in another on the faith of which [170] something has been lost on one side and gained on the other. (Robertson v. Robertson, 9 Watts, 36; Haines v. O’Connor, 10 Watts, 320; Fox v. Heffner, 1 Serg. & R. 376; Lloyd v. Spillet, 2 Atk. 148.) Here, it will be seen by reference to the bill of exceptions, no fiduciary relations existed between Hammond and Cad-wallader. No evidence is' offered to show that Hammond was a bidder at the sale of the land, or that he expected at any time to become a bidder; no evidence that Oadwallader made any representations at thfe sale, or authorized a*ny by which the sale was affected, or by which Oadwallader was enabled to buy the land at an under-value ; no proof that in fact the land did not sell for its full market price at the date of the sale. The case was a naked promise to buy the land in trust for the plaintiff, and such a trust not being in writing is clearly within the third section of our statute of frauds. It will be observed that the bill in this case does not contain any allegation of fraud, and nothing is better settled than that, where a trust of this kind is sought to be enforced, fraud must be distinctly alleged and clearly proved. (Browne on Stat. of Frauds, 93, and cases cited.) Moreover, if this was the object of the petition, the trial should have been by the court. But if this action is to be regarded, not so much as a suit to compel the specific performance of a trust, as for damages for the breach of a contract, it must fail under another section of the statute. The contract alleged and proved in this case must be considered as an agreement, upon certain contingencies, to'pay the debt of another. Laying out of view all consideration of a trust in the land, the promise of defendant was simply to sell the land which he was about to purchase at the sheriff’s sale,, and apply the proceeds — after the payment of a small sum to Johnston, his brother executor, and the extinction of his own mortgage debt — to the plaintiff’s claim against the estate of Eli Oadwallader. This promise was clearly within the fifth section of the statute. Judgment reversed. The other judges concur.