| N.H. | Jan 15, 1858
Our statute of fraud, of which the defendants in their answers claim the benefit, is as follows: “ No trust concerning lands, excepting such as may arise or result by implication of law, shall be created or declared useless by an instrument signed by the party creating the same, or by his attorney.” Rev. Stat., chap. 130, sec. 13. Under this statute parol evidence is expressly excluded to show any trust in lands, except such as may arise or result by implication of law.
A resulting trust may be raised, rebutted or discharged, by parol evidence. Page v. Page, 8 N. H. 187 ; Scoby v. Blanchard, 3 N. H. 170; Sugden’s Law of Vendors 414, 419; Powell v. Manson, 3 Mason 362 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Boyd v. McLean, 1 Johns. Ch. 582" court="None" date_filed="1815-11-14" href="https://app.midpage.ai/document/boyd-v-mlean-5550136?utm_source=webapp" opinion_id="5550136">1 Johns. Ch. 582 ; Willis v. Willis, 2 Atk. 71. But the evidence must be clear and satisfactory, and can only be received to show a fact, from which the law,
The acknowledgement of the receipt of the consideration in a deed cannot be contradicted for the purpose of defeating the conveyance. Prichard v. Brown, 4 N. H. 897 ; Morse v. Shattuck, 4 N. H. 231; Holmes v. Barker, 3 Johns. 508 ; Welt v. Franklin, 1 Binney 502 ; Shep. Touch. 223 ; Philbrick v. Delano, 29 Me. 410" court="Me." date_filed="1849-04-15" href="https://app.midpage.ai/document/philbrook-v-delano-4928404?utm_source=webapp" opinion_id="4928404">29 Maine 410.
In Graves v. Graves, 9 Foster 129, it was held that where a deed is made without any consideration, there is no resulting use or trust for the benefit of the grantor, if a consideration is stated in the deed, or if a use is expressly limited in the deed of the whole property ; and that the receipt of a consideration, admitted in the deed, cannot he contradicted for the purpose of raising a resulting trust for the grantor.
The trust which the complainant contends exists in this case was not created by any instrument in writing, and if it exists at all, it must be by implication of law. The deed which was executed by Farrington and wife to Wilkins, conveying the land, was in the usual form of quitclaim deeds, and stated to be for the consideration of $120 ; and, so far as that instrument shows, it gave to Wilkins, of whom the defendants are the legal representatives, all the title which the grantors had to the premises. The plaintiff can have no greater claim against the defendants than he could against Wilkins, were he alive; so that the question comes to this, can the grantor of a deed, stated to be for a good and valid consideration, and executed with all the formalities required by the statute, show by parol that the grantee took and holds the estate for him in trust ? Can there in such a case be a trust which arises or results by implication of law ?
Lord Hardwicke said that a resulting trust, arising by operation of law, existed, first, when the estate was purchased in the name of one person, and the consideration came from another; and, second, where a trust was declared only as to part, and nothing was said as to the residue, that residue remaining undisposed of remained to the heir-at-law. He said also that he did not
The bill charges no fraud upon Wilkins in taking the deed, and there is no evidence of any as between the grantor and grantee. Whether any was contemplated by the complainant against his wife, is not a question between the parties to this bill. If relief were sought for her by the proceedings, she should be a party upon the record.
If the general description of resulting trusts given by Lord EardwieJce covers the whole ground, it is quite manifest that the trust sought to be established in the present case does not fall within the class of resulting trusts, and that it is consequently not within the exception of the statute; and if it be not within that exception it cannot be created or upheld by any parol agreement. The case of Graves v. Graves appears to be precisely in' point. In that case, as in this, it was attempted to be shown by parol evidence that the deed from the grantor to the grantee was without consideration, and that the land was held by the grantee for the benefit and in trust for the grantor; but the court decided that it could not be done. And from the best examination which we have been able to give the question, we are satisfied that the case presented here does not show a resulting trust, such as is contemplated by our statute or sanctioned by the authorities.
We do not find it necessary to express any opinion as to the weight of the evidence, because, being parol merely, it is incompetent to impeach the deed, or to show any trust other than a resulting one. Flint v. Sheldon, 13 Mass. 443" court="Mass." date_filed="1816-10-15" href="https://app.midpage.ai/document/flint-v-sheldon-6404511?utm_source=webapp" opinion_id="6404511">13 Mass. 443, 448.
Our conclusion, therefore, is, that the
Bill must be dismissed.