| Iowa | May 15, 1852
Opinion by
Suit by <T. Olive for specific performance. The bill alleges a verbal agreement, under which it is averred tbat complainant entered into possession, and made valuable improvements on part of a lot in Keokuk.
Tbe answer denies the agreement,' and s.ets up tbe statute of frauds. Upon this issue and tbe depositions, tbe cause was submitted to tbe court, and tbe prayer of tbe bill was refused for want of equity.
Complainant now urges tbat tbe court below erred in dismissing the bill; and tbat the relation of trustee and oestui qioe trust exhisted between the parties. But the averments in the bill show no such relation. It merely shows tbat in Jape, 184o, Jones and Dougherty were in possession of a lot in tbe city of Keokuk, of which J. had 25 by 50 feet, apd D. tbe balance, that there was an understanding between them that, when title could he obtained, they would purchase the lot and each hold the part he .occupied; that in March. 1846, D-- purchased the partition
It appears that D. & J. were both in possession of portions of the lot, and had made the improvements before they talked of any arrangement to secure title, and by that arrangement neither of the parties assumed the trust. There was no undertaking to buy the lot; either of them might do it, or neither. No consideration or written memorandum of the arrangement was passed between the parties. There was no fiduciary relation established; no confidence reposed, no trust created.
According to Barnardeston Ü.R. 388, there are only'two kinds of trusts by operation of law; either where the deed has been taken in the name of one, and the purchase money paid by another; or where the owner of an estate has made a voluntary conveyance of it, and declared the trust, in part, to be for another, but is silent-as to the other part.
The present case falls far short of this rule. The puiv chase money was not paid by J., nor was any portion ever tendered to D., in whose name the lot was entered, and still the whole foundation of such a trust is the payment of the purchase moneys.
Again, the rule prevails without exception, that unless the trust arise on the face of the deed itself, the proofs must be clear and conclusive — 1 Bibb. 609; 3 John. 222; 2 Serg. and Rawle 527; 3 Ves., Jr. 705; 10 ib. 511; 1 Vern.
We think the authorities cleai-ly establish the doctrine that to constitute a resulting trust in real estate, by parole, it should be conclusively proved that the purchase money belonged to. the cestui que trust, or was advanced for him by some other person, as a loan or gift. Getman v. Getman, 1 Barb. Ch. R. 299; Sugd. on Ven. 140; Hill on Trustees 92; Shoemaker v. Smith, 11 Hum. Tenr. 81. Under the authorities, it obviously follows that no trust is established in the present case.
But there are other reasons which justified the court in dismissing the bill. The agreement, alleged in the bill, is not sustained by the proof, nor is a sufficient performance shown to take the case out of the statute .of frauds. Even in the agreement alleged, there is no certainty as to time of performance, or the price to be paid. It also shows a want of mutuality. D. was not bound to purchase title, nor was J. under any obligation to buy of him, if he did purchase. There was no reciprocity, no mutual obligation,
A party claiming specific performance, must show his full compliance with all the terms of the contract. 2 Story Eq. Jr. §§ 271, 276; 1 Scam. 54; 1 How. U. S. 76.
The contract must be mutual, the tie reciprocal, or a court of equity will not enforce a performance. Harring Ch. R. 124, 420; 1 Ham. 14; 6 ib. 383.
The contract to be enforced, must be certain in all its parts, and clearly ascertained. 2 Story Eq. Jr. §§ 751, 767; 6 Paige Ch. 288" court="None" date_filed="1837-01-23" href="https://app.midpage.ai/document/german-v-machin-5548262?utm_source=webapp" opinion_id="5548262">6 Paige 288; Harring Ch. 124; 1 Gilman 454; 14 Pet. 77" court="SCOTUS" date_filed="1840-02-17" href="https://app.midpage.ai/document/carr-v-duval-86126?utm_source=webapp" opinion_id="86126">14 Peters 77, 82.
In this case, therefore, we are clearly of the opinion that the court below decided correctly.
Decree affirmed.