30 Ala. 366 | Ala. | 1857
The central and cardinal point in this case is, the alleged purchase of a tract of land under a secret trust for the complainant’s execution debtor, or his wife. There is no proof taken in reference to the existence of such a trust. If such a trust be established at all, it must, therefore, be by the admissions of the answers, either express or implied, according to the rules of chancery pleading and evidence.
The answer of Blackman, upon whom it is attempted to fix the trust, denies, in plain and positive terms, that the purchase was made “under secret or other trust” for Branch, the debtor. This flat denial by a material defendant, directly interested in the question, certainly throws the onus of proof upon the complainant, as to the
In the consideration of the other branch of the proposition, that the purchase was made in trust for the debtor’s wife, we avoid the question, whether the trust was such as would enure to the husband, and could therefore be made available by his creditor, because its determination is not necessary. The answtír of Blackman says, that he has no interest in the suit, except in relation to the land; and adds a statement, which, it says, is the whole truth in relation to the matter. That statement contains a detail of circumstances, showing that the condition of Branch’s family appealed to the defendant’s charity. It sets forth that it was desired to procure the land in question, as a residence for Branch’s family; that Branch lived in Mobile, deriving an income inadequate to the maintenance of his family, from a clerkship, while the family remained in Lowndes county; that it was thought, that if Mrs. Branch could get the place to live on, she could pay for it with the proceeds of her industry and care; that Chambliss would not let her have the land; that the defendant, Blackman, then gave his note for the land, and told Mrs. Branch, if she could and would pay for the land, she might have it; that there was no writing, either in reference to the purchase of the land, or the agreement with Mrs. Branch, except that Blackman gave a note for the purchase-money. The answer proceeds as follows : “There was not any agreement between respondent and Mrs. Branch, only she said she thought she could pay for
Now, if it be conceded that the agreement, by the answer admitted to have been made between Mrs. Branch and Blackman, amounts to a contract that the latter would hold the land in trust for the former; or, if it be conceded that the omission of the answer to deny that an' agreement was made with some other person than Mrs. Branch or her husband that she should have the land, authorizes the implication that there was such an agreement; yet it is certain, that the contract, upon either alternative, rested in parol. The bill, and responsive allegations of the answer, show such to be the case. The statute of frauds has “no application to a trust arising by operation of law alone” ; (Caple v. McCollum, 27 Ala. 461;) but, if there be any trust in this ease, it arises from a pure, simple, parol agreement, and comes clearly within the statute of frauds. — Agee v. Steel, 8 Ala. 948. There has been no part performance of the parol agreement, on the part of Mrs. Branch, or any one for her. She has paid nothing for the land. The payment, which has been made, and the improvements done upon the land, were under a contract of sale, which the answer states, in response to the bill, was made by Blackman to one Turner. These acts are, therefore, in part performance of a different contract, and can have no effect in taking this one out of the statute of frauds. Admitting, then, that there was a parol agreement to hold the land in trust for Mrs. Branch, it is an agreement which could not be enforced in favor of Mrs. Branch, or her husband, or her husband’s creditor, in the absence of fraud, of which there is no evidence in this case.
If it be conceded that what the answer of Blackman admits was said between Mrs. Branch and Blackman amounted to a contract, which would be specifically performed ; and that Mi’s. Branch went into and held posses
"We do not wish to be understood as admitting, by what we have said, that what is stated in the answer of Blackman amounts to a contract, suchas could be specifically performed. On the contrary, we understand it to be totally wanting in mutuality of obligation. It was not binding upon Mrs. Branch, and could not be upon Black-man. It was a mere gratuitous promise, on the part of Blackman, that Mrs. Branch might have the land, if she could and would pay for it.
It results from what we have said, that the chancellor erred in rendering a decree for the complainant. The decree of the court below is, therefore, reversed; and this court, proceeding to render the decree which the chancellor should have done, doth order, adjudge, and decree, that complainant’s bill be here dismissed, and that the complainant pay the costs in this court and the court below.