113 Mass. 372 | Mass. | 1873
The statute of frauds forbids the maintenance of any action upon such an oral agreement as is set forth in this bill. There can be no decree for specific performance, therefore. ' The agreement cannot create an express trust; Gen. Sts. c. 100, § 19; and an implied trust cannot arise against the recitals, declarations and covenants of the plaintiff’s own deed. Blodgett v. Hildreth, 103 Mass. 484.
The only mistake of fact shown by the bill is that the mortgage-was discharged instead of being assigned to the plaintiffs or to Mrs. Peirce. But if it had been assigned to them, or to her, the whole estate, free from the incumbrance, would have passed by their subsequent deed of warranty to Joseph A. Colcord, which contained no exception of the mortgage.
If the understanding with which the money was advanced by Mrs. Peirce to pay off the mortgage be regarded as a part of the arrangement for the conveyance subsequently made, the difficulty still is that, so far as there was any agreement for her security, it was for security in a specified mode; to wit, by holding the note and mortgage so taken up. There was no agreement for any other form of security, or generally that the amount so paid should be made a charge upon the land by the deed of conveyance or any contemporaneous instrument. No relief can be afforded, therefore, by way of reforming the written instruments to make them conform to the terms of the oral agreement. The fatal mistake was in the oral agreement itself and in substance it was a mistake of law, or of legal effect, and not of mere fact. Mrs. Peirce may have a claim against the estate of Joseph A. Colcord for the money advanced by her as a loan made to him j or for the same amount as so much of the agreed price of the land, or consideration of the deed remaining due and unpaid; and, if such claim is not barred by the statute limiting actions against executors and administrators, it may be equally effectual as a specific charge upon the land. If it is barred, her neglect to enforce the claim at law as a debt, is not a good reason for resorting to equity for the purpose of charging it upon the land.
We are of opinion that the bill sets forth no sufficient ground in equity for interference of the court either to set aside the deed, to restrict its operation, or to compel the defendants to give some other form of security instead of that agreed upon, but which was in fact ineffectual for the purpose. Demurrer sustained.
