109 Mass. 496 | Mass. | 1872
Allowing to the crude, confused and contradictory allegations of this bill the utmost possible effect, it contains no statement whatever of the nature of the defence of these plaintiffs to the original bill previously filed by this defendant; it sets up, with equal vagueness and imperfection, two inconsistent titles, one under a purchase by Jonas R. Slack from Enos Morgan, and the other under a disseisin of the latter by the former; it alleges that the deed from Morgan to Slack was signed and sealed, but leaves it, to say the least, ambiguous whether it was delivered, and contains no allegations tending to show that it was executed or intended as a memorandum of an independent agreement between the parties, and therefore fails to present the question, suggested at the argument, whether that deed, undelivered, could be deemed a sufficient memorandum in writing to satisfy the statute of frauds; it does not state with any definiteness the terms of any such independent agreement, and it imports throughout that any agreement which was made was merely oral; and that fact, thus appearing on the face of the bill, may be taken advantage of by demurrer. Walker v. Locke, 5 Cush. 90. Randall v. Howard, 2 Black, 585. No trust arising or resulting by implication of law, or expressly declared in writing, nor any written memorandum of agreement, being shown, the case is within the statute of frauds. Gen. Sts. c. 100, § 19; c. 105, § 1. And the bill sets forth no title in the plaintiffs, in aid of which they are entitled either to the discovery or to the relief prayed for. Without therefore, considering the other grounds relied on by the defend ant in argument, the
Demurrer is sustained.