33 Md. 37 | Md. | 1870
Lead Opinion
delivered the opinion of the Court.
The bill in this case was filed to enforce a lien upon certain lands of the appellants for a balance of purchase money due
The deed from Kidd to Carson and Eowland is in the ordinary form of a deed of bargain and sale, conveying a title in fee to the lands sold. It is not alleged that this deed is different in form and character from what the parties intended at the time of its execution. On the contrary it is admitted to be> just such a deed as they intended to make. The purchase money, set forth in it as the consideration, has been all paid, and there is no question, therefore, of any appropriation of that fund. But it is said that Carson and Eowland agreed at the time of the conveyance to credit any profits which might be made by them from a sale of this land, over and above the purchase money paid, upon the amount due for the land which is sought to be sold under the bill filed in this case. We have no doubt from reading the record that such an agreement was made, and that profits have been realized by them upon the purchase. But the agreement rests entirely in parol, and was not reduced to any writing signed or acknowledged by the parties. To enforce it would be to change the character of the deed, which had been drawn and executed as the parties intended it, and “ to set up a conventional trust on the foundation of a special parol agreement.” This cannot be done. It would be in plain and direct violation of the Statute of Erauds, which provides that all declarations or creations of trust or confidences of any land shall be utterly void, unless manifested and proved by some writing signed by the party who is by law enabled to declare such trust. McElderry vs. Shipley et al., 2 Md., 25; Wilson vs. Watts, 9 Md., 434; Wolf and wife vs. Corby et al., 30 Md., 356.
This case was very fully argued on the part of the appellants, but we cannot perceive that any grounds have been presented to avoid the force of the Statute, and as reluctant as we may be to reject the claim of the appellants to the credit in dispute, we must affirm the decree of the Court below.
Decree affirmed, and cause remanded
for further proceedings.
Dissenting Opinion
delivered the following dissenting opinion:
The agreement of Carson and Eowland to credit any profits which might be made by them, from a sale of the land conveyed to them by Milton T. Kidd, by the deed of the 21st of March, 1853, having been clearly proved, I think the credit ought to be allowed and differ with a majority of the Court, that its allowance is forbidden by the Statute of Frauds. That statute was intended to prevent and not to be the means of sanctioning fraud.
The acknowledgment of the receipt of the purchase money in the deed, is but prima facie evidence of its payment, and does not preclude the'grantor from showing by parol that the consideration has not been paid; or that some additional consideration, agreed upon, had not been paid.
Evidence of other consideration, than that described in the deed, can be given, if not inconsistent with the character of that in the deed. Where the deed is made on a moneyed consideration, it cannot be shewn that money did not constitute the consideration, because that would operate to change the character of the deed, but evidence may be admitted to show the same kind of consideration, although differing as to the amount.
In this case the parol testimony does not affect the character of the deed from Kidd to Eowland and Carson, but shows an additional or suppletory consideration, which if established, as it manifestly was in this instance, imposes upon the gran
