56 A. 190 | N.H. | 1903
The plaintiff says he is the equitable owner of the farm in question, and that the defendant, as residuary legatee under the will of John Crowley, holds the legal title. The defendant denies that the plaintiff has any title, and says that John was the absolute owner of the farm, and she is now owner by reason of being such residuary legatee. The issue is between the two parties as individuals. The estate of John has no interest in it whatever. The defendant's position in the suit is no more representative of the estate than it would be if her title depended upon a quitclaim deed from John to her. Such being the facts, the provision of the statute (P. S., c. 224, s. 16), by which the surviving party to a cause is not allowed to testify as to facts occurring in the lifetime of the deceased, unless his executor or administrator elects to testify, does not apply; and there was no error in the ruling by which the plaintiff was accepted as a witness. P. S., c. 224, s. 13.
A trust in the farm in favor of the plaintiff would result by implication of law if it was purchased with the plaintiff's money and the title was taken in John's name, not to effect a gift, but to overcome disabilities arising from the plaintiff's minority, — both the plaintiff and John understanding that the farm was to be the property of the plaintiff. Page v. Page,
The defendant says that upon the facts disclosed in the report the *244
$300 paid by the plaintiff toward the farm at the time of the purchase was John's money as a matter of law, because derived from the plaintiff's labor while he was a minor and receiving support from his father. Although John would be entitled to the plaintiff's earnings while a minor, in the absence of any agreement or understanding to the contrary, he was at liberty to allow the plaintiff to have his earnings for his own benefit. John's consent that the plaintiff's earnings should belong to him would bind John, and give the plaintiff a good title to them as against John's devisee. Johnson v. Silsbee,
The further point is made by the defendant that a trust did not result in favor of the plaintiff because he did not pay the entire consideration for the farm at the time of the purchase; that his payment of John's note subsequently would not operate to raise the trust. If the plaintiff paid $300 of his own money toward the farm at the time of the purchase, understanding that he was not giving the money to his father, a trust would result in his favor pro tanto, even if the balance of the purchase money was so paid as not to raise a resulting trust on its account; that is to say, John would hold the title to six undivided seventeenths of the farm in trust for the plaintiff. Pembroke v. Allenstown,
Another point made by the defendant is, that if there was a trust it was an express trust, and being created by parol, is void by virtue of the statute of frauds. The fact relied on to constitute an express trust is that the purchase was made by the plaintiff to make a home for his parents during their lives. So far as appears, this was merely the reason why the plaintiff made the purchase. He did not attempt to make a contract by which his parents were to have a life estate in the farm. Their occupancy of it was to be by his license, and was terminable at his will. They were to have no rights in it, and no trust in respect to it in their favor was contemplated by the plaintiff or them. If it be so, this position of the defendant is not tenable.
The defendant further says that if there was originally a resulting trust, the plaintiff is now barred from any remedy to enforce it by the statute of limitations or laches. The statute does not ordinarily run against an express trust until there is an open disavowal of the trust, or some other breach of faith which may give rise to an action. It runs against a constructive trust arising from the commission of fraud as soon as the fraud is committed, unless the fraud is concealed from the beneficiary, in which case it will not begin to run until he has actual or constructive notice of the fraud. The reason seems to be that the fraud from which the trust originates is "as complete and absolute a denial of the rights of the injured party as it is possible to have; and every day which passes without reparation of the injury is a continuation or repetition of it." Howell v. Howell,
According to the provisions of the case, the defendant should have judgment. But justice seems to require that the plaintiff should have a further hearing if he desires it; and to afford him an opportunity to apply for such hearing, the order made here is,
Case discharged.
All concurred. *247