134 A. 18 | R.I. | 1926
Lead Opinion
Each of the above entitled cases is a suit in equity seeking to fix a trust in favor of the complainants upon certain real estate in Providence, the title to which stands in the name of the respondent.
Each case was tried upon bill, answer, replication and proof before a justice of the Superior Court who entered a decree in each case dismissing the bill. Each case is before us upon the complainant's appeal from the decree of the Superior Court.
It appears that the respondent is the widow of one Louis Rossi, who died a resident of Providence. The respondent and Louis Rossi were married in 1899. The complainant in the second of the above entitled cases is a daughter of the respondent and Louis Rossi. The complainants in the first of the above entitled cases are two daughters of Louis Rossi by an earlier marriage. During the lifetime of Louis Rossi he was the owner of the real estate in question, and in *494 September, 1903, without consideration he conveyed the same to one Fraterelli, a brother of the respondent. In November, 1903, Fraterelil, by direction of Louis Rossi, conveyed the property without consideration to the respondent who continued to hold title to the property until the death of Louis Rossi in 1922. The complainants by their evidence seek to establish the allegations of the bills that the equitable title to said real estate remained in Louis Rossi till his death, and that upon his death the equitable title passed to his heirs. The complainants seek to have the court declare a constructive trust in said property in favor of the complainants based upon their claim of the fraud of the respondent in now treating the transaction as constituting an absolute conveyance to her.
In Industrial Trust Co. v. Colt,
Before one who claims to be the cestui under a constructive trust can obtain relief he must establish the conscientious obligation of a respondent by clear and convincing evidence. *495 We have carefully read the transcript and are of the opinion that the evidence fails to establish the complainants' claim of an agreement on the part of the respondent to hold the property in question for her husband or for his heirs. The complainants are not entitled to relief.
At the hearing some question was raised as to whether, by reason of certain language in the opinion in Broadway Bldg. Co.v. Salafia,
The appeal in each case is dismissed and each case is remanded to the Superior Court for further proceedings.
Concurrence Opinion
I concur in the conclusion reached by the majority that the complainants' proof is insufficient to warrant the establishment of a trust in their favor but I must respectfully decline to subscribe to the proposition that we might properly have established a constructive trust if the parol evidence of the alleged promise to reconvey had been clear and convincing. If the respondent promised to reconvey, there is no suggestion, either that the conveyance was obtained by fraud, actual or constructive, or that the respondent intended at the time the conveyance was made to violate said promise.
My position is that the Statute of Frauds forbids the establishment by parol evidence of a trust on an oral promise, *496 accompanied by no fraud, actual or constructive, to reconvey. Section 6, Chapter 333, G.L. 1923, (a portion of the Statute of Frauds) provides that "No action shall be brought: — . . . Whereby to charge any trustee under any express trust . . . Unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized." I am aware of the fact that English and certain American courts, in their attempt to do justice in "hard cases", have, in spite of the Statute of Frauds, established constructive trusts on mere oral promises where the only evidence of fraud was the failure to reconvey; and that such decisions have, to some extent, been followed as precedents.
The statute was evidently intended to prevent, in the absence of fraud accompanying the promise parol proof of an oral promise to hold in trust. If the legislature intended that the statute should be readily side-stepped and a trust with a different name established by parol proof whenever an oral promise, made without fraud and in absolute good faith, to hold in trust or reconvey is broken, there appears to have been very little reason for adopting the provision above quoted from the Statute of Frauds — or even mentioning express trusts — because when the provision to reconvey is not broken there is no occasion for bringing action; and when it is broken the court can simply allow the parol proof and establish a constructive trust which is just as effective as an express trust.
The language of certain courts that the Statute of Frauds is inapplicable because such use of the statute would permit a grantee or devisee to benefit by his own fraudulent conduct and that the statute was not intended to be used as an instrument of fraud is very pertinent where the trustee obtained the property or conveyance by fraudulent practice. In such a case the trust was at its inception a constructive as well as an express trust although the defrauded person *497 being unaware of the fraud and relying upon the express promise which was fraudulently made thought that only an express trust had been created; but when said language is applied to express trusts the courts are simply begging the question. They assume that a promise to hold in trust or reconvey has been established when the only proof available is not admissible.
If a trust is simply an express and not a constructive trust at its inception it remains merely an express trust; its name and character do not change, thereby making the obligation a constructive trust, when the trustee merely refuses to keep his agreement.
It is sometimes stated that the above provision of the Statute of Frauds does not bind courts of equity. Whom was the provision intended to bind if not courts of equity? Does any other court enforce either express or other trusts? I assume that courts of equity are bound as much as any other court by positive legislative injunctions intended for their respective guidance.
In Industrial Trust Co. v. Colt,
No fair-minded person can fail to be in sympathy with the endeavors which courts have made to establish trusts when satisfied that a conveyance without consideration, — and not intended as a gift, — was obtained without fraud by a person who at the time of the conveyance intended to keep his agreement to reconvey. Perhaps it would be wise to repeal the statutory provision and rely upon the court to *498 require very clear and convincing evidence of the oral promise to hold in trust, but while the intention of the legislature remains as expressed by statute courts should not ignore that intention and thereby abrogate the statute.
(Mr. Justice BARROWS being ill did not sit in either of these causes.)
RATHBUN, J, concurs in the result.