112 Mass. 171 | Mass. | 1873
The transaction, as it was intended by the parties engaging in it, was to create an express trust in favor of these plaintiffs, to be declared in writing. That purpose was carried into effect,, so far as that a deed of the land to the trustees selected was executed by Clarkson, the money which she was to receive advanced by the defendants, and the terms of the trust arranged and agreed upon. The business was left unfinished at this point, in order that the memoranda of the terms of the trust might be extended in a formal instrument for the defendants to sign. The- defendants were permitted to take the deed from Clarkson, upon agreeing to execute'a declaration of trust according to the memoranda, when the same should be written out and presented to them, and then to record both the deed and the declaration" of trust together. The formal declaration of trust having been prepared and handed to the defendants in due time, they have failed to sign and record it, but have- recorded the deed without the declaration, and now undertake to hold the property in fee simple, unincumbered of the trust.
These facts, admitted by the demurrer, show that there never was any such delivery of the deed as would entitle the defendants to hold it, without complying with the condition upon which they were permitted to take it into their manual possession. It was a conditional delivery only. Mills v. Gore, 20 Pick. 28. Chandler v. Temple, 4 Cush. 285. Wheelwright v. Wheelwright, 2 Mass. 447. Maynard v. Maynard, 10 Mass. 456. The attempt to take advantage of that permission by recording the deed, and to disregard the condition on which alone the defendants received it,
The defendants rely for their protection upon the statute of frauds, and especially upon the provision which forbids the creation or declaration of trusts otherwise than by an instrument in writing. Gen. Sts. c. 100, § 19. But the ground of equitable jurisdiction and interference in this case is not the alleged agreement of the defendants to hold the property for the benefit of the plaintiffs. It is not the enforcement of a trust. The result may be to enforce a trust, or to give effect to an oral agreement concerning an interest in land. But that is incidental, and not as the foundation of the proceedings. Those are based upon the fraud of the defendants in improperly obtaining and recording the deed of the land. To defeat that fraud, the court set aside and vacate the deed. Having thus the authority over the subject matter, it is to be disposed of according to the equitable rights of the parties. The agreement of trust, and the other facts resting in paroi evidence, are competent to disclose to the court those equities; and when they are ascertained they will be protected and secured by such means as may be adapted to the end.
If the defendants have already executed the instrument declaring the trust, it is competent for the court to order it to be surrendered to the plaintiffs, or placed on record for their benefit. Pierce v. Damson, 5 Allen, 60. Or they may be required to release the land for the use of the plaintiffs, with such provisions bs the court may order for securing to them the repayment of the Bum they have advanced.
Demurrer overruled.
