22 F. Cas. 465 | U.S. Circuit Court for the District of Massachusetts | 1838
The main questions in the cause are, (1) in the first place, whether there was an agreement of general copartnership; (2) in the next place, whether any such advances or purchases were ever
I have read over the whole evidence in this case; and although there is much from the confessions of the defendant, which, if it stood alone, might lead one to the conclusion, that there was some sort of partnership, or joint interest, intended by the parties, in certain purchases, made or to be made of lands and lumber in Maine; yet I am not entirely satisfied, that it is so definiteand satisfactory, as to its nature or extent, or the proportions of the parties, as would lead a court of equity to enforce it; for it is a general rule of such courts, not to interfere to direct a specific performance of any agreement, where the terms of the contract are not all definite and full, and its nature and extent are not made out by clear and unambiguous proofs. See 2 Story, Eq. .7ur. §§ 751, 7C4. 7G7, and the cases there cited. But the countervailing proofs, on the part of the defendant, do certainly throw great doubts and uncertainties over the proofs on the other side, and lead us 1o the conclusion, that there may have been
But, if this difficulty could he overcome, there are other considerations of very grave importance, touching the next point, namely, of the advances, made by the plaintiff on account of the asserted copartnership; and, if such advances were made, of the actual investment of such advance moneys in any lands or timber on account of the asserted copart-nership. Upon this subject, the bill states, that about the 20th of June. 1834, the plaintiff and defendant, being in the state of Maine, for the purpose of prosecuting the business of the copartnership, purchased of one Babbitt, at Bangor, “one undivided moiety of a large quantity of logs or timber, for the sum of thirty-five hundred dollars, or thereabouts”; and the other undivided moiety was at the same time purchased of Babbitt by one Robert M. N. Smith, for the like sum of thirty-five hundred dollars, or thereabouts; and by the terms of the sale, a credit was to be given for some part of the purchase-money (but for what part the credit was to be given, the bill does not state); and thereupon it was agreed, that Smith should have the management and control of the timber, and sell the same, and account with the plaintiff and defendant for their moiety thereof; that the plaintiff then advanced to the defendant on account of the purchase, and for his share of the money then to be paid, the sum of one thousand dollars, or thereabouts; that, afterwards, about the first of January, 1835, Smith accounted with the defendant for the proceeds of some part of the sales of the timber, and paid to the defendant the sum of two thousand dollars on account of the plaintiff and defendant, and thereupon the plaintiff directed the defendant to retain the same, to bo paid on account of certain lands, purchased on joint account, of one Black, and which will be hereafter mentioned.
The bill then states, that, in further prosecution of the copartnership, the plaintiff and defendant, about the first of October. 1S34, contracted with one Packard, that he should convey to the plaintiff, or his assigns, a certain tract of land in Maine, and thereupon Packard executed and delivered to the plaintiff his bond, conditioned to convey the land to the plaintiff, or his assigns, upon the making of certain payments by the plaintiff, or his assigns; that about the first of December, 1S34, the plaintiff delivered the said bond to the defendant, to enable the latter to comply with the conditions, and obtain a conveyance of the land; that the defendant, instead of so doing, gave up the bond to Packard to be cancelled, alleging that it was not for the benefit of the copartnership to receive a conveyance. The bill then slates, that about the 12th of December. 1S34, it was ascertained, that one Black, in his own right, as agent or trustee, was desirous of selling several townships of land in Maine, and that one David Webster was ready and willing to purchase one undivided moiety thereof, and thereupon the plaintiff and defendant agreed, that their copartnership should purchase the other moiety thereof; and' that the defendant should proceed without delay to make a contract with Black for the sale and conveyance thereof; and that the sum of one thousand dollars retained by the defendant should go and be applied by the defendant, in and towards the first cash payment for the sale and conveyance of the said moiety by Black; and that, if the defendant should want more money for the purpose, he should give notice thereof to the plaintiff, who was to assist him in raising the requisite funds. The bill then states, that the defendant accordingly contracted with Black for the one moiety of nine and one half townships of land; and Webster contracted for the other moiety thereof; that the defendant then paid Black the sum of one thousand dollars, and no more, toward the purchase money, and to bind the bargain; that the contract in writing of Black, for such sale and conveyance thereof, was, by agreement between defendant and Webster, to run to them both, to convey the whole lands to them, of which Webster was to be the owner of one moiety, and the defendant of the other; but whether Webster then knew, that the purchase was then made by Burnham for the benefit of the copartnership, the bill alleges the plaintiff to be ignorant. The bill • then states, that Black executed the contract in writing accordingly. The bill then alleges, that the plaintiff and defendant afterwards, jointly and separately, offered the interest of the copartnership in the said townships for sale, and endeavored to effect a sale thereof; and that the defendant constantly spoke of the interest in the said lands as belonging to the copartnership, and spoke of, and recognized, and treated the said plaintiff, as having an equal and co-partnership right therein. The bill then states, that afterwards, about the 12th of February, 1835, the time approaching, when another payment would become due to Black, the plaintiff made a further advance of four thousand and four hundred dollars to the defendant. to be applied towards such payment to Black. That soon afterwards the defendant sold the interest of the copartnership in seven and one half of the said township, at a great profit; that the plaintiff was ready to have made any further advances on account of the copartnership, to enable the defendant to comply with his contract with Black, and had actually deposited in a bank at Bangor for the purpose the sum of five thousand dollars, to his own credit; but the defendant never asked for any further advances; and the plaintiff understood that Black did not exact strict payment, so that no more money was wanted. The credit was
These are all the specifications in the bill of any advances, for investments made under the asserted copartnership. As to the purchase of Babbitt, the answer gives a very different account of it from what is stated in the bill. It positively denies that there was ever any such copartnership interest therein; and as positively denies, that the plaintiff ever advanced the sum of one thousand dollars, or any other sum, to the defendant, as the plaintiff’s share of moneys to be paid for the logs. On the contrary, the answer asserts. that on the 23d of .Tuly, 1834, the plaintiff lent one thousand and ten dollars to the defendant, and took the defendant’s promissory’ note therefor, payable on demand, with interest. The bill admits the giving of this note, and insists, that it was taken and preserved as a memorandum of the amount and time of such advance, and that this is a- customary mode of doing business in like eases. A copy of this note is annexed to the bill, and it is for the payment of one tliousand and ten dollars, to the plaintiff, or order, on demand, with interest. Now, no satisfactory proof has been offered in this case, that in transactions of this nature notes in such a form are ever given as mere memorandums of advances. That notes should be given in such cases, payable on demand, would seem to be sufficiently singular,' and so inexpressive of the real intent of the parties, as ’ to excite some doubt whether it could be a usual course of business. But that such notes should be given, payable with interest, would seem to be utterly repugnant to all notions of propriety in the conduct of such business. Prima facie, such notes must be presumed to import a present absolute indebtment of money, for which interest is to be paid. And to allow parol evidence to shew, that such was not the intention of the parties would be, not only to vary, but to contradict, the very words of the instrument. It appears to me, that this very note is written evidence directly contradicting the allegations of the bill, that there W’as an advance of one thousand dollars on copartnership account, towards the purchase of the timber from Babbitt. I know not. indeed, where a court of equity could stop, if it could, under such circumstances as are presented in the present case, allow such a note to be treated as a mere memorandum of an advance, for a purchase upon a copartnership account. The defendant has. in his answer, also, expressly denied, that he has ever received from Smith any moneys or notes, on account of the timber. beyond the moneys which he had advanced without any interest therefor. But, as the case made by the bill is met by such direct denials of the copartnership, and of the advance of the one thousand dollars on account thereof, and is unsupported by any sufficient evidence, the question of such advance may be dismissed from any further consideration. The testimony of B.. M. N. Smith, who is principally relied on to establish this part of the plaintiff’s case, is to the following effect: That he saw the plaintiff and Burnham, at Bangor, in the summer and fall of 1834; that they were there for the purpose of speculation in lands and other matters. That he was employed by them to use his influence and information for getting bonds for lands for them; and was to receive, for his compensation, half of the profits made on the sale of such bonds, and the plaintiff and Burnham were to share the other half, equally, between them. That both the plaintiff and Burnham stated to him that they were jointly and equally interested in any speculations they should make. That they jointly with him purchased a lot of logs of Babbitt, in the early part of the summer of 1S34; his interest to be one half and that of the plaintiff and Burnham, the other half, jointly and equally, between them. The plaintiff did not make any advance of money for the purchase of the logs; but it was to be made, and was made by Burnham. That when the bargain was closed the plaintiff offered to go and get a sum of money to pay, and Burnham told him he had money enough in his pocket-book to pay what was required; and that the plaintiff and he could settle afterwards; and Burnham accordingly paid the advance money, about two thousand dollars. The witness gave to Burnham two notes, or receipts, to account for the advance, which were afterwards returned to him by Burnham, on a settlement in tlié following autumn. The witness was to take the lumber, and saw it up, and sell it, and then he was to have half the profits, and the plaintiff and Burnham the other half. On the settlement he paid the whole advance of two thousand dollars; but no more is stated by him to have been paid to Burnham. That in December, 1834. he saw Burnham at Bangor. Soon after he and Burnham, and Colonel Webster, went to see Black at Ellsworth, and there Burnham and Webster concluded a bargain for the lands with Black. That the witness had no interest to the purchase; but that Burnham told him, that “Webster was to have one half, and the plaintiff and himself the other half together, they being jointly and equally interested in any purchases of land;” adding, that the plaintiff’s capital was not large, but his credit was good, and that they could make out their parts of the payment well enough. The witness added that “in various conversations Burnham told him, that he and the plaintiff were equally and jointly concerned in any operations to be made by either.”
The. testimony of Dudley Smith, the brotlier of the plaintiff, is even more general and loose. In relation to the lumber purchase. he says, that on the last of August, or the first of September, 1S34, he was present at a conversation, in Gilford (N. H.) between the plaintiff and Burnham, respecting the buying and selling of land in Maine. They spoke of having been in company in that, and selling lumber; and among other things. Burnham asked the plaintiff, if he wished to continue on in company in the lands; and the plaintiff answered, yes. They then agreed, that Burnham should go to Boston and to Maine, on the business, where the plaintiff was to join him, and to pay half the expenses. A few days after, Burnham said to him: We (meaning the plaintiff and Burnham) shall make something on our lumber; but I do not see how your brother (the plaintiff) is going to make out his part of the money? The witness states further, that on the 10th of February, 1S35, at Gilford, he was present at another meeting and conversation, between the plaintiff and Burnham; that they spoke of going to the state of Maine together. That afterwards it was concluded that Burnham alone should go. as it was not necessary to go on the land, and that Burnham should take the money. That the witness got $500 from the village bank,
In the next place, as to the purchase of land from Packard, or rather the bond for a conditional purchase from Packard. As the bond in this ease was actually given up. and nothing was ever obtained under it, and no case is made by the bill for any relief touching the same, the only aspect, in which it can become material, is as a link of evidence to establish a particular copartnership in those lands, or an act of purchase under the asserted general copartnership. It is in the latter view, that it is presented in the bill. Does it establish this latter view? In the first place, the bond was taken from Packard in the name of the plaintiff alone; and so far as this fact goes, although the bill asserts the bond to have been taken on joint account, it is written evidence of a sole right, if not contradicting, at least not confirming, the notion of a joint interest. In the next place, the answer expressly denies, that there was any copartnership or joint interest in the bond, or that it was taken on partnership account; and it insists on the contrary, that, although the bond was taken in the name of the plaintiff, yet it was so for the sole account and benefit of the defendant and one John B. Morgan. The reason assigned in the answer for this mode of transacting the business is, that before the making of the bond, it came to the defendant’s knowledge, that, in consequence of certain writings between one Asa W. Babcock and the said Packard, Packard could not, as the defendant believed, make the bond to the defendant, without in some way affecting a certain contract for taking timber from the said land, or interfering therewith. That, on this account, the bond was arranged to be taken in the name of the plaintiff, without his knowledge or authority, for the benefit of the defendant and Morgan. That the plaintiff came to Bangor before the bond was executed, and the circumstances were mentioned to him, and he was told by the defendant, that if he wanted to have any share in the contract he might have it; that the plaintiff made no objection to the bonds being made as aforesaid; and it was so executed, accordingly, and delivered to the defendant That the plaintiff said he woul,d take a share therein; but did not say what share, nor was it understood or agreed, what share he should have; but that it was never understood or agreed, that the plaintiff and the defendant should have any copartnership interest therein. The answer further denies, that the plaintiff ever gave to the defendant the sum of $2,300, or any other sum to enable him to comply with the conditions of the bond. The answer further avers, that it was agreed between the plaintiff, the defendant. and Packard, that the defendant should give a counter bond or contract to Packard, and the plaintiff; and the defendant accordingly did give such bond or contract to the effect, that the plaintiff and the defendant would take the land at $1.25 per acre, to be paid for at certain given times by instalments, the plaintiff agreeing to take an interest in the lands, if they could be obtained at the price last mentioned, but not as a copartner, as the defendant understood the agreement. The answer then goes on to state, that Packard refused to part with the land at less than $1.50 per acre; and thereupon the contract was rescinded by the consent of the parties, and the bonds mutually given up.'
The testimony of Morgan, the other supposed co-contractor, is in the case. He states, that in the autumn, and, as he thinks, in September, 1834, he had a conversation while riding with Burnham, and that in the course of the ride, Burnham spoke freely of the connection in business subsisting between himself and the plaintiff,, and informed him that the plaintiff had agreed to furnish $12,000; that the agreement between him and the plaintiff was, “that they should be equally interested in all purchases of land, &c., to be made.” Burnham added, that the agreement between the plaintiff and himself was not in writing, and he could work the plaintiff out of it; and that he would take hold of the purchase with him (Morgan), and take one half on his own account alone. He adds, that he was connected in the autumn of 1834 with the plaintiff and Burnham in the purchase of the Packard lands, his interest to be one third, and that of the plaintiff and Burnham to be one third each. Afterwards in the same autumn. the parties all met at Portland, and it was then agreed, that Burnham should go to Packard, and endeavor to purchase the
In the next place, as to the purchase from Black, which, after all. constitutes the main hinge of the controversy. In regard to this part of the case, there is much testimony of confessions of Burnham, at different times, to different persons, and in different places, that the plaintiff was jointly interested with him in that purchase, as well as in his Eastern speculations generally, in lands and lumber. Some of this testimony has been already stated; and much of the remaining part is of the same general character, consisting of loose declarations of joint interest and copartnership between Burnham and the plaintiff. I do not pretend to go over the particulars of this testimony, though some of it is abundantly open to comment. The testimony of Clark is clearly not admissible, since he was not examined on the cross-interrogatories. If it were admissible, it seems to me utterly discredited by the contradictions between that and his petition and affidavits, filed in the cause of Clark v. Burnham [Case No. 2.816], in the cireuiteourt in Maine. Perhaps the strongest testimony is that of William M. Kimball to conversations, which he states, that he had with the defendant at several times. First, in January, 1835, at Boston, soon after the purchase of Black, in which he says, that the defendant told him, that he and Frederick Smith had lately purchased several townships in the state of Maine, but he does not remember the number of townships, nor the precise sums paid for them; but it was several hundred thousand dollars; and that the land was in the Bingham purchase. That the defendant added, that he and Smith had purchased together; that they were partners in tiie purchase; that they both advanced money towards the purchase; and that Smith had not advanced so much as he had expected him to advance. Next he states a conversation with the defendant in Febru
If the testimony to the conversations and confessions of Burnham, that the purchase from Black, was made upon joint account, or partnership account, stood alone, it would, from the considerations already suggested, lay open to some doubt and difficulty, owing to the intrinsic infirmity of all such evidence. But it seems to me, that it has to encounter so much opposition, if not contradiction, from other unexceptionable evidence in the case, that a court of equity ought to hesitate a great while, before it should lend entire credence to it, for the purpose of establishing the plaintiff’s claim. In the first place, to meet this claim at the threshold, we have the written contract of Black, by which he binds .himself to deliver to David Webster and Daniel Burnham, their heirs or assigns, a deed in fee, with warranty, of the lands in controversy. This contract, therefore, being for the purchase of lands, is confined to the immediate parties. Webster and Burnham, without any mention of the plaintiff, or of any other person being interested therein. The presumption therefore is, that no other person had any sudh interest therein, except Webster aDd Bum-ham. How then is the interest of the plaintiff to be made out? It must be by_showing, that there is a trust created in his favor in the very lands. Now, this is not attempted to be shown by any written evidence or document The sole reliance of the plaintiff is, and must be, either, that Burnham and he were, at the time, copartners in business, and that the purchase was made out of the partnership funds; or that the plaintiff actually advanced his own funds on joint account, which were applied to the purchase. Now, the bill does not contain any direct allegation, that the moneys of the copartnership, or of the plaintiff, were actually applied to the purchase from Black. The answer explicitly denies, that any such moneys were applied; and as explicitly denies, that any person, except the defendant and Webster. had any right or title, or interest in the purchase. It is true, that the defendant admits'in his answer, that he did apply the $4400, for which he gave to the plaintiff a negotiable note on the seventh of February, 1835, with other moneys of his own towards the purchase. But he positively states, that the $4400 was a mere private loan to himself, and was not so applied as the moneys, either of the plaintiff, or of the supposed copartnership. The note itself on its face supports the answer in this respect; for its terms are just such as ought to exist in the case of a loan, and seem altogether irreconcilable with such a transaction, as the bill asserts, a mere advance to one partner on partnership account. Another striking fact in this part of the case is, that although the purchase money exceeds two hundred thousand dollars; yet there is not a scrip of paper, showing the assent of the plaintiff thereto, or his obligation to pay any part thereof, or his being a co-pureliaser with Burnham. Now, certainly, in so large a purchase, it is scarcely credible, that a person of limited means, like Burnham, should take upon himself the whole personal responsibility of paying the whole money without having his partner a •party to the contract, or bound to contribute towards the payment, or even without having any proof in writing to show that he was a partner. Suppose the speculation had turned out in the event to be a very losing bargain; what recourse could Burnham have had against the plaintiff? And if the plaintiff had a known fixed copartnership interest, how happens it, that there is no correspondence showing the fact, and calling upon the plaintiff to provide his share of the money? And how happens it, that the plaintiff’s name does not appear upon the face of the notes given for the purchase money?
There is another most important portion of testimony, bearing upon this part of the case, which has not been contradicted, or even its credibility doubted. Webster was deeply interested, not only in his own half of the pur
But, supposing the objections already stated not to be insuperable, we come, in the next place, to the consideration of the important point, whether a parol contract of this sort, for a partnership in speculations in land, to be bought and sold on joint account, is not within the true intent of the statute of frauds. It seems to me, that it must be so considered, both upon principle and authority. There is no substantial difference in the language of the statute of frauds of Massachusetts, New Hampshire, and Maine on this subject; or between them and the English statute of frauds of 29 Car. II. c. 3.
Now, taking these clauses together, or separately, the same conclusion would seem to follow, as to the parol agreement in the present case. If the agreement could be treated as a sale by the defendant to the plaintiff of any interest in the lands to be purchased, it would be within the statute. If it could be treated as the case of an estate created in lands, it would be a mere estate at will, which would defeat the whole intention of the agreement, and the whole object of the bill. I incline to think, that it properly falls under neither of these predicaments; but that it is the case of the declaration or creation of a trust or confidence in lands, not arising or resulting by implication or operation of law. The trust arises eo instanti upon each purchase, and is then to attach, if at all. If the land is not sold, the plaintiff would still be entitled to his moiety of the land as a trust in equity, just as much as he would be entitled to a moiety of the proceeds upon a subsequent sale. Suppose the defendant should die after any particular purchase, and before the sale, would it not be clear that the trust, if it had any legal existence, would attach in favor of the plaintiff, as to his moiety, just as much against the heirs of the defendant, or persons purchasing under them with notice, as against the.defendant himself? Certainly it would. It has been ingeniously argued, that the interest of the plaintiff is in a moiety of the profits, or proceeds of the sale, and not in the land itself; and that, therefore, at least, when the land has been sold by the defendant, the agreement attaches to the moiety of the proceeds. But the agreement, if good at all, attaches also to the land at the time of the purchase; and it is then an agreement for an interest by way of trust in the land, a sort of springing trust; and it is in virtue of this trust estate, and of this only, that any right can attach to the moiety' of the proceeds. The right to follow the proceeds is a right which, if it exists at all, flows from the interest in the lands, and the trust created in favor of the plaintiff. It is not collateral; but direct. Indeed, the bill puts the agreement as one of a copartnership for “purchasing and selling lands,” by means of a capital to be furnished by the partners, the profits and losses to be equally shared by them. Then, again, it is suggested, that the agreement is not within the statute of frauds, because it did not so much contemplate an interest in the lands purchased, as an interest in the contracts to convey' lands obtained by the defendant for the partnership, and the profits made on the sale thereof. But it is a sufficient answer to this suggestion, that such is not the agreement set up in the bill. It is not an agreement to purchase contracts for the conveyance of lands to be sold for the partnership; but an agreement for the purchase and sale of lands for the partnership. But if the bill had stated the agreement to be, as the argument has supposed, it would not have changed the legal posture of the case. A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands; and makes the vendor a trustee for him. A contract for the sale of an equitable estate in lands, whether it be under a contract for the conveyance by a third person, or otherwise, is clearly a sale of an interest in the lands within the statute of frauds. See Hughes v. Moore, 7 Cranch [11 U. S.] 176, 192-194. A partnership to buy contracts for the sale of lands, is a partnership for the purchase of an equitable interest in those lands. If the transactions are to be carried on by and in the name of one partner, the partnership is to create a trust for the other in those contracts; and consequently, if the agreement for the partnership is by parol, it is to create such trust by parol. This would bring the case within the purview of the statute of frauds. Bet us apply this doctrine to the case of the purchase from Black. Webster and the defendant only entered into the written contract with Black for the purchase of the lands. They alone were the parties to it. They' alone, at law, have the legal rights growing out of it. How then does the plaintiff make out any title or interest in that contract? It is by setting up a parol trust to the one moiety of the land purchased by the defendant by that contract, under the parol agreement for the partnership; that’ trust being one of the express terms of that agreement.
Then, it seems clear, that this is not the case of a resulting trust by implication or construction of law. It is not the purchase of an estate by one man in the name of another, where the purchase money is paid by the former, and the deed taken in the name of the latter. It is not the case of a purchase, confessedly paid for out of the funds of an existing partnership, for partnership purposes, and the deed taken in the name of one partner. In each of these cases a resulting trust will arise by operation of law, in favor of the party or parties advancing the money. See Sugd. Vend. (9th Ed.) pp. 134, 135, c. 15, § 2; Dyer v. Dyer, 2 Cox, Ch. 92, 93; 2 Story, Eq. Jur. §§ 1201-1207. Here no partnership funds, as such, existed; and no partnership funds, as such, are shown to have been applied. Lord Hardwicke, in Lloyd v. Spillet, 2 Atk. 150, said, that resulting trusts, or trusts by operation of law, were, first, when an estate is purchased in the name of one person, but the money, or consideration, is given by another; or, secondly, where a trust is declared as to part, and nothing said as to the rest, what remains undisposed of results to the heir at law. And he added he did not know any other instance, besides these two,
But let us see, how the present case stands, upon authority, as to this objection. Sir Edward Sugden, in the ninth edition of his treatise on the Law of Vendors and Purchasers of Estates (2 Sugd. Vend. 9th Ed., 1834, p. 139), has stated, that “where a man employs another person by parol as an agent to buy an estate, who buys it accordingly, but denies the trust, and no part of the purchase money is paid by the principal, and there is no written agreement, he cannot com-, pel the agent to convey the estate to him, as that would be directly within the statute of frauds.” It appears to me, that this is fully borne out by the authorities. It was the very point in Bartlett v. Pickersgill, 4 East, 578, note; s. e. 1 Eden, 515, 1 Cox, Ch. 15. There the defendant bought an estate for the plaintiff; but there was no written agreement between them, and no part of the purchase money was paid by the plaintiff. The defendant articled for the estate in his own name, and refused to convey to the plaintiff, who brought the bill to compel a conveyance. There being no written evidence, that the estate was purchased for the plaintiff, the question was, whether parol evidence was admissible to establish it. Lord Keeper Henley held, that it was not admissible. On that occasion he said: “The question is, whether this evidence be competent or not? That will depend on the statute of frauds. To allow it in this case would be to overturn the statute. The reason for making the statute was the confusion of property owing to perjury either for money or affection. The statute says, ‘No trust shall be of land, unless there be a memorandum in writing, except such trusts as arise by operation of law.’ It is not like the case of money paid by one man, and a conveyance taken in the name of another.” I am not aware that the doctrine of this case has ever been impugned or shaken. On the contrary, Mr. Chancellor Kent has fully recognized its authority on several occasions, and particularly in Boyd v. McLean, 1 Johns. Ch. 582, 589; Steere v. Steere, 5 Johns. Ch. 1, 19; and Botsford v. Burr, 2 Johns. Ch. 403, 409. In this latter case he acted upon-its authority, it constituting one of the main questions in controversy.
There is another case of Atkins v. Rowe, Mos. 133, where some persons, desirous of obtaining a lease of three houses, agreed that one of them should bid for all the houses, but that the lease should be for their joint benefit. Accordingly he bid, arid a lease was made to him; and a bill was filed by the others to have the benefit of the lease, and that the purchaser might be decreed to be a trustee. He pleaded the statute of frauds in bar to the discovery and relief. According to Mosley’s Reports, the lord chancellor (Lord King), seemed to be of opinion in favor of the plaintiff; and ordered the plea to stand for an answer, with liberty to except, and the benefit of it to be saved to the hearing. Sir Edward Sugden, however, informs us, that the defendant by his answer denied the agreement, and the cause being at issue, several witnesses were examined on both sides. There was a contrariety of evidence; but the plaintiff proved the agreement by one positive witness, corroborated by circumstances. The lord chancellor dismissed the bill with costs; and his decree was affirmed by the house of lords. 2 Sugd. Vend. (9th Ed. 1834) pp. 133. 134.
There is another case (Lamas v. Bayly, 2 Vem. 627), where two persons entered into a treaty for the purchase of an estate, and one of them desisted, and permitted the other to go on with the intended purchase upon a parol agreement, that he should have the part of the estate he desired. The estate was purchased, and then the purchaser refused to comply with the parol agreement, and a bill was brought to enforce it. At the rolls the plaintiff had a decree, partly upon the ground, that the desisting was a part performance; but chiefly upon the ground, that it was a fraud, and like the case, where a man agreed to purchase as agent for another, and would afterwards retain the purchase to himself. Upon an appeal, the lord chancellor (Cowper) reversed the decree, upon the ground, (as the reporter says,) that it was within the statute of frauds. However, I do not rely on this case; because it appears, from Mr. Raithby’s note (1) that the decree in the register’s book, is, “that his lordship declared, that the circumstances in this case
In Rastel v. Hutchinson, 1 Dickens, 44, the bill charged, that the plaintiff had employed the defendant to purchase a house for him, and he accordingly made the purchase in his own name, and took a conveyance to himself, and refused to make a conveyance to the plaintiff; and that in order to prevent the plaintiff from enjoying the premises, he had reconveyed to the grantor, who was also made a party to the bill; and the bill prayed a performance of the purchase. The defendant pleaded the statute of frauds. Upon the plea being argued, it was ordered to stand for an answer, with liberty for the plaintiff to except, and the benefit saved to the hearing. What afterwards became of the case does not appear. The benefit of the plea being reserved to the hearing, is an order too equivocal in its nature to found any absolute opinion upon it.
Then there is the case of Crop v. Norton, 2 Atk. 74, 9 Mod. 233, 235, where Lord Hard-wicke is reported to have said, ‘‘that where a purchase is made, and the purchase-money is paid by one, and the conveyance is taken in the name of another, there is a resulting trust for the person who paid the consideration. But this is, where the whole consideration moves from such person. But I never knew it, where the consideration moved from several persons, for this would introduce all the mischiefs, which the statute of frauds was intended to prevent.” Now, if this language was meant to apply to all joint purchases, where definite proportions of the estate were to be purchased for each party, as one fourth, one third, or one half, each paying his proportion of the purchase-money accordingly, it cannot be maintained; and the doctrine was overturned in Wray v. Steele, 2 Ves. & B. 383, by the vice-chancellor, Sir Thomas Plumer. But if the language was used (as I conceive it was) with reference to the case then before Lord Hardwicke, where there was a mixture of considerations of different natures, and no such definite proportions of the estate to be purchased and held by each party were ascertained, and no definite proportions of the purchase-money to be paid by each were- fixed, then, in my judgment, there is great ground to sustain the doctrine. How, under such circumstances, would it be possible to say, what interest or trust in the property each was to take? Surely it would be too much to say, that it was to depend upon the future valuation of the property, or the future contributions made by the parties respectively towards the purchase, or the possible values of the interests in other property contributed by each. In Crop v. Norton, the purchaser surrendered his own interest in the old lease for one life, upon taking the new. and the other party, claiming as purchaser, paid £1,500 towards the renewal for three lives. But no sum was fixed as the agreed value of the old lease for the one life. Lord Hardwicke would not, under such circumstances, allow the parol agreement to control an express declaration of trust by the purchaser. Sir Thomas Plumer, in Wray v. Steele, 2 Ves. & B. 388, 390, has taken the same view of the case of Crop v. Norton, as that above suggested; saying, that the doctrine laid down by Lord Hard-wicke must be understood with relation to the case before him, and not generally. That it was a mixed case, the consideration consisting not merely of money, but of the surrender of an old lease; and it was decided on the particular facts. Mr. Chancellor Jones, in his elaborate opinion in White v. Cax-penter, 2 Paige, 241, took the same view of the doctrine of Lord Hardwicke, saying: “The grounds of the decision of Lord Hard-wicke show, that Lord Eldon was right in saying, that this ease was misconceived, when it was cited as an authority for the rule, that a trust could not result from the payment of part of the purchase-money. The principle is, that the whole consideration for the whole estate, or for a moiety, or a third, or some other definite part of the whole, must be paid, to be the foundation of a resulting trust. And that the contribution or payment of a sum of money generally for the estate, when such payment does not constitute the whole consideration, does not raise a trust by operation of law for him. who pays it. And the reason of this distinction obviously is, that neither the entire interest in the whole estate, nor in any given part of it, could result from such a payment to the party, who makes it, without injustice to the grantee, by whom the residue of the consideration is contributed.” Upon the rehearing, Mr. Chancellor Walworth seems to have approved the doctrine of Mr. Chancellor Jones on this point. Id. 265. The same doctrine was fully recognised in Sayre v. Townsend, 15 Wend. 647. Now. under one aspect of this case, namely, the doubtfulness of the evidence to establish the proportions of the partners in the asserted partnership, and the extent of the advances made, or to be made, by the plaintiff towards the joint purchases, this doctrine nfighl have had a most important bearing. But I now refer to it for the more direct purpose of showing that mixed purchases of this sort are held to be within the statute of frauds, when there have not been definite proportions and advances made towards the purchase-money by each of the parties interested.
The case of Leman v. Whitley, 4 Russ. & R. 423, is a strong case to show the general doctrine of the court, as to the admission of parol evidence in cases within the statute of frauds. There a son had conveyed to his father, nominally as a purchaser, but really as a trustee, that the father, who was in better credit than the son, might raise money on the estate by way of mortgage for the use of the son. The father died before the money was raised by mortgage. Upon a bill
The case of Groves v. Groves, 3 Young & J. 163, shows how reluctant the court is to create any trust upon mere confessions, even confessions that the purchase-money had been paid by a third person.
The case of Forsyth v. Clark, 3 Wend. 637, establishes the doctrine, that, if a purchase is made of lands by one partner, it will not create a resulting trust thereon in favor of the partnership, even if the partnership funds have been appropriated to the purpose, unless the appropriation has been in pursuance of an agreement of the partners at the time of the purchase. If there be no funds of the partnership, as such, to be appropriated to the purpose, it would seem, a fortiori, that no such resulting trust could arise. The same point was decided in Hoxie v. Carr [Case No. 6,802).
Some eases have been cited on the other side, the most material of which I shall proceed to mention. Of these the most striking is Lees v. Nuttall. 1 Russ. & M. 53; s. c.. 1 Tam. 282. There the defendant, an attorney, had been employed to purchase an equity of redemption of a mortgaged estate for his client, the plaintiff, and the attorney had purchased it in his own name, and insisted upon holding it in his own right. But the master of the rolls (Sir John Leach) held him to be a trustee for.his client, and decreed a conveyance to be made to the client upon the payment of the purchase-money. The ground of the decision was, that the subsisting relation between the plaintiff and thg defendant, as principal and agent, or client and attorney, disabled the defendant from holding the purchase for his own use. Now, that ease is distinguishable from the present in the important fact, that the present purchase was made by the defendant, not as a mere agent, but as a principal in interest. and properly in his own name. If, in that case, the attorney had been authorized to purchase in his own name, in trust for his principal, that would have given rise to the very question now before the court. Then the case of Hess v. Fox, 10 Wend. 436. There a parol agreement was made between the mortgagor and mortgagee of an estate, that the mortgagor should convey an absolute title to the mortgagee, in order that the latter might sell the estate, and that, after discharging his own debt, the mortgagee should pay over the surplus to the mortgagor. The court held the case not to bo within the statute of frauds. There, the legal title to the estate was vested in the mortgagee. The sale was executed and surplus money was claimed under the agreement, as the consideration for parting with the title. Now. there was here a plain resulting trust to the mortgagor, upon the conveyance of the equity of redemption, for he had received no consideration therefor. The sale of the equity was then a sale for his use. Then, the case of Bunnel v. Taintor’s Adni’r, 4 Conn. 568. That was a case, where there waa a parol agreement of the plaintiff and the intestate, to buy and sell lands on joint account. The plaintiff was to make the bargain for the purchasers, and to render all necessary services; the intestate was to furnish the purchase-money, and take the deeds in his own name, and execute the deeds or sales; and the profits were to be divided between them. After the death of the intestate, this action was brought for an account of the profits against the administrator. The case went off upon other points; but it was the opinion of a majority of the court, that the agreement was not “upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, within the statute of frauds of Connecticut”; though it was thought to be a mere point of speculation, not necessary to be decided in the case. Now the point in the present case is not, whether the contract was a sale of lands, or any interest therein, within the statute of frauds; but whether it is the ease of a trust in lands, or the proceeds thereof, within the statute of frauds. This case, therefore, may be dismissed from our consideration, as it did not turn upon the point now in controversy. As to the case of Griffith v. Young, 12 East, 513, it is sufficient to say, that in that ease the money had been expressly received by the defendant from a third person, to pay over to the plaintiff upon a consideration executed. But Lord Ellenborough said, that if the contract had been executory, it would have been within the statute of frauds. There is a case (Pitts v. Waugh, 4 Mass. 424), which seems to me also to approach nearly to the point of this very question. It was there decided, that the law merchant respecting dormant partners does not extend to partnerships formed for speculations in the purchase and sale of lands; that when lands are sold, no man as a dormant partner can claim any part of the lands by virtue of any conveyance. to which he is not. on the face of it, a party; and that, if the nominal purchaser choose to hold the lands, the party, who has advanced the money, if not named as grantee, can have no title to the land (at law), whatever remedy he may have against him. to whom the land was conveyed (in equity). The court were also of opinion, that a purchase and sale of that sort, by such a partnership, was within the statute of frauds.
These are all the most direct authorities, on which it seems important to comment. It seems to me, that they leave the case of Bartlett v. Pickersgill. 4 East. 577. note: s. c.. 1 Eden, 515; s. c., 1 Cox. Ch. 15. — in full force unimpeached and unimpeachable. The true result to be deduced from the authorities seems to me to be. that in the first place the present cannot be deemed the ease of a resulting trust in the lands purchased of Black,
Upon the whole, my opinion is, that the bill ought to be dismissed; but, under all the circumstances, without costs to either party.
The clause in the Massachusetts statute of 1783, c. 37, § 3, respecting parol trusts, not resulting trusts, was not incorporated into the Revised Statutes of Maine, in 1821, c. 53. But this omission was cured ny enacting it in the statute of Maine of the 14th of February, 1827, c. 358.