Salisbury v. Clarke

| Vt. | Jan 15, 1889

The opinion of the court was delivered by

Taft, J.

The orator claims that the intestate Lestina D. held ■certain real estate in trust for him. No claim is now made as to the land in Searsburg. The controversy is limited to the Main street property in Brattleboro, which he. claims that he ■can hold, first upon the ground that he has traced into it the funds arising from the sale of the Hall property on High street, •which latter property she held in trust for him, as he claims. It is necess'ary, therefore, to inquire whether he has established a trust in the latter. On the 30th of July, 1870, the orator owned the property, and on that day by deed of quit-claim conveyed it to Lestina for the consideration of ten thousand dollars, for which she gave the orator her promissory note payable on ■demand with annual interest. As a part of the same transaction the parties executed a contract, of which the following is a ■copy :

“ Brattleboro, July 30, 1870.

“Whereas, George H. Salisbury has this day executed his deed -of quit-claim of certain real estate in Brattleboro to Lestina D., Salisbury, in consideration of which the said Lestina D. Salisbury has executed and delivered her promissory note to the said George H. Salisbury for the sum of ten thousand dollars, payable on demand with interest annually.

“ And whereas, the said Lestina D. Salisbury has this day •executed a lease to the said George H. Salisbury of said premises for the term of ten years, reserving an annual rent of six hundred dollars. Now it is hereby mutually understood and agreed that the rent reserved in said lease shall be annually set off against the interest accruing on said- note, and that upon the-decease of either of the parties to this agreement, should that event happen during the term for which said lease is given, all the papers this day executed and delivered shall be cancelled,, surrendered and held for naught, and that the administrator or executor of the deceased party shall make and deliver to the party surviving such deeds or other instruments in writing as-may be effectual for the purpose of restoring the parties and their personal representatives to the same condition, and with the same rights and obligations that existed before the execution of said deed, note and lease.”

The contract was sealed and executed in the presence of a* witness, and the orator insists created a trust in the said Lestina in the High street property. Sec. 1933, R. L., reads: “ No trust concerning lands, excepting such as arise or result by implication of law,' shall be created or declared, unless by an instrument in writing, signed by the party creating or declaring the same, or by his attorney.” Did the writings create or declare a trust t Upon the face of them it shows a sale of the real estate to Lestina, and a payment for it by her giving a note for its val ue_ The orator remained in possession of the estate, the rent offsetting the interest upon the note. The contingency, upon the happening of which the contracts evidenced by the writings-were to be annulled, never happened; neither party deceased during the life of the lease ; prior to its termination the property was sold. What became of the ten thousand dollar note does-not appear. The effect of the papers of July, 1870, was to convey to Lestina the orator’s property, a leasing of the same by her to him, for ten years at an annual rent, a payment of it by said Lestina, by her note for ten thousand dollars, with an agreement that all the papers then executed in relation to said property should be annulled upon the decease of either of the parties during the life of the lease. If the property was reconveyed to him he must surrender to Lestina or her administrator the ten thousand dollar note. Now while it is true that a trust. may be created or declared by a writing of an informal nature,. e. g., a letter, receipt, answer in chancery, deposition, a recital, in a deed, a memorandum of almost any kind, still the objects- and nature of a trust must always appear from such documents-with sufficient certainty. Nothing in the papers indicates that, the orator was to have the use of the property or the property itself, except upon payment of what appears to have been a reasonable consideration. He was entitled' to the use of the> property-upon the payment of rent, and in case of' a re-conveyance to him, within ten years, he was to pay for it by surrendering the note against Lestina for ten thousand dollars ;; and after the expiration of the lease both parties remaining-alive, his interest in the property ceased in every respect. We cannot hold that a trust was created or declared by the papers-executed in July, 1870, without doing violence to the language-of the papers as well as the evident meaning thereof. He was to have the property only upon payment of its value. Second t: Ho trust in the High street property having been created nor-declared by Lestina, in writing, did one either in that or in the-Main street property arise or result by implication of law ? The-orator was the owner of the lands and conveyed them to Lestina. for the expressed consideration of ten thousand and seven thousand dollars respectively, with, an habendum in case of the Maim, street property to the said Lestina I)., her heirs and assigns, to her and their own proper use, benefit and behoof forever.. .Parol evidence was not admissible to show that there was, in fact, no consideration and that Lestina agreed by parol to hold' the lands for the orator. It is the case of a voluntary deed’i which on its face purports to be upon consideration and for-the beneficial use of the grantee, made deliberately, without-fraud, mistake or contrivance. Such a deed can only be-attacked by one having superior equities — like a creditor.

The authorities are decisive and uniform that the doctrine of resulting trusts has never been applied in such cases. Third r: It is further claimed by the orator that parol testimony is admissible to show the trust from the mean circumstances in the pretended owner of the real estate or inheritance which makes it ■impossible for him to be the owner. Upon this question Willis v. Willis, 2 Atkins, 71, is cited. That case is meagerly reported; no facts are stated, and we think the eminent Lord "Chancellor Hardwicke is merely stating that upon the question arising in a case where it is claimed that the purchase money ihas been paid by one party and the conveyance taken to another, •which seems to have been the question in the case, that the .grantee is in impoverished circumstances, may be given in ■ evidence to show who paid the consideration, not that a trust necessarily results. The fact that a pauper pays thousands •of dollars upon the purchase of property is more likely to be accounted for upon the theory that he is acting for a third party than for himself. This rule of evidence upon the ■ question of who paid the consideration is recognized in 1 Perry on Trusts, 137; Hill on Trustees, 94; Wilkins v. Stevens, 1 Y. & C. 431; Strimpfler v. Roberts, 18 Pa. St. 283; Ryal v. Ryal, cited in Lane v. Digelton, 1 Ambler, 413.

We are further asked by the orator to hold that if Lestina had refused to re-convey the premises to the orator and claimed . absolute ownership in the premises, it would have been a fraud•ulent act on her part from which a court of equity should .grant relief. But the rule above stated in case of voluntary -conveyance upon expressed consideration, is too well and has ■been too long settled to be now departed from.

Decree affirmed and cause remanded.