2 Wis. 552 | Wis. | 1853
Lead Opinion
By the Court,
After a careful examination of this causé, we are unable to find any thing in it which would warrant a decree in favor of the complainant. Independent of the objection that there is a palpable variance between the case made
But within a few days after the making of this contract, the complainant executed an absolute transfer or assignment of the same, and of all right and interest to which he might become entitled by virtue thereof, to his brother David H. Whitney, which assignment recited a consideration, (fifteen hundred dollars). There is no declaration in this assignment that it is made in trust, but parol proof is introduced to show that the assignment was intended for the benefit of the complainant, and was without consideration. If there was any pretence that through fraud or mistake, and against the intention of the parties, the recital of a valuable consideration found its way Into the instrument, there can be no doubt that a court of equity ought to admit parol evidence of the absence of such consideration, but unless such fraud or
There is no objection to this document on the ground of fraud, mistake or surprise, and the parol proof of a want of consideration, which would render an effective transfer a mere voluntary conveyance, is therefore insufficient and improper. Nor can it be shown by parol, that the transfer which completely vested in David W. Whiting, all of the interest of the complainant, was intended nevertheless to be in trust for the use and benefit of the latter. At the time of the execution of the assignment, (February, 1839,) the statute of Michigan “for the prevention of frauds,” was the law in force and applicable to the transaction. The eleventh section of that statute declares, “that all declarations or creations of trusts or confidence of any lands, tenements or hereditaments, shall be manifested or proved by some writing signed by the party” able to declare such trusts, or they shall be utterly void. (Stat. of Mich. 252.) This statute created a rule of evidence applicable to trusts in lands, by requiring that they should be manifested or proved by some writing, and as there is no such evidence of a trust in this transaction, we must hold that
The provisions of the statute of frauds do not apply to implied trusts, or those which are raised or created by operation of law, and not from the agreements or contracts of the parties, which would render the trusts express. The latter come within the intention and words of the statute which requires that all such agreements shall be in writing, but the former are not affected by the statute. It is hardly necessary to remark, however, that in the transaction between the complainant and his brother David, there is no ingredient of an implied or resulting trust. The assignment must be taken to have been for a valuable consideration, and its effect was to divest the complainant of all interest, legal or equitable, in the contract with'Wright and Knapp, or in the property.
It appears that in 1839 or 1840, the title to the lote in question vested in Lorenzo Janes, and that the portion of the original contract which provided for- the building of a furnace on one of the lots, was by the consent and desire of David (who claimed to be the owner or assignee of the contract,) changed, and instead thereof, Mary E. Whiting, who was then unmarried, agreed to take a deed of the premises from Mr. Janes to her, and to give a mortgage on the same to secure the payment of two hundred dollars. In pur-
It is claimed that the title was conveyed to Mary E. Whiting “for the use and benefit of the complainant ”; in other words, that she acquired the property as trustee for her brother, the complainant. If the intention, at the time, really was to secure the estate ' to Ebenezer (the complainant,) as the person equitably entitled to it, the parties to the transaction were most unfortunate in omitting all efforts or means to express such intention, for we here find the only person who could legally insist on any right under the first contract voluntarily abrogating it in part, and participating in a new arrangement, by which the title was to vest absolutely in Mary, and she alone was to secure the payment of the sum thereby agreed to be paid. The deed from Janes and wife to Mary E. Whiting bears date the 28th day of July, 1840, and at that time the Statute of Michigan for the prevention of frauds had given place to the Statute of the Territory of Wisconsin, “to prevent fraudulent conveyances and contracts relative to real and personal property.” The sixth section of this statute provided
Under this provision of the statute, an express trust could be created by deed or conveyance only, and not bj parol, while an implied or resulting trust might be .raised or created by the operation of law, and proved by parol, for the obvious reason that the latter hind of trust has its origin, not in the agreement or contract of the parties, (which must be in writing,) but in the absence of all such agreement, and arises out.of the transaction merely. The latter is but the creature of equity, the former is the result of compact ; and although a trust by operation of law is not affected by the statute of frauds, it is now, as it was before the enactment of the statute, entirely inconsistent with even a bare declaration of the trust by parol. JEx-pressum facit cessare taciturn. (See Lord Bellasis vs. Compton et al., 2 Vernon, 294.
We may here remark that it is not pretended that a trust relating to this property, and in favor of the complainant, was at any time created or declared in writing; but we are called upon to find and establish from the proofs, a resulting or implied trust. If this cannot be done, the whole case fails.
It cannot, we think, escape observation, that the proof throughout has relation to parol agreements and arrangements between the parties, having for their object the preservation of the complainant’s interests, notwithstanding their inconsistency with the written instruments. We have already stated that such agreements are insufficient to create a trust, or to vary the effect of a deed or contract in writing, and
If we correctly understood the counsel for the complainant, it is claimed that a trust results to him from the payment of the consideration, and if the principle were opposite to the case, there would be little difficulty in disposing of it, for ever since the case of Dyer vs. Dyer, 2 Cox, 92, decided by Lord Chief Baron Eyre in 1788, in accordance with all the pre-preceding cases, it has not been questioned, “ that the trust of a legal estate, whether freehold, copyhold or leasehold, whether taken in the name of the purchaser and others jointly, or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successively, results to the man who advances the purchase money.”
But there are insurmountable objections to the application of this principle to the present case. The whole consideration for the property was not originally paid by the complainant; he advanced five hundred dollars, and agreed by his contract with ’Wright Knapp, to erect a dwelling house and a furnace on the property, the cost of which was not at the time defined, nor has it yet been shown what the cost of the erection of the dwelling house has been, for the evidence on this subject is not such as to ena
By the subsequent agreement, at the time of the conveyance of the property to Mary E. Whiting, she gave a bond for the sum of two hundred dollars, and secured the payment thereof by a mortgage of the property, as a further consideration for the purchase, and we can find no evidence that the complainant ever paid any portion of this sum. It is insisted, however, that the two hundred dollar bond was paid by a sale of a part of the property; but it is idle to contend that a resulting trust from the advance of the purchase money, can be thus raised by something like reimbursement, long after the execution of the deed by which the estate vested in the alleged trustee. The trust must have sprung into existence (if at all) cotemporaneously with the deed, and if the consideration for the conveyance consisted, in whole or in part, of a credit given to Mary, no subsequent tender or reimbursement could have a retrospective effect to produce a resulting trust to the extent of such credit. Chancellor Kent, in Botsford vs. Burr, (2 John. Ch. 405,) while discussing this subject, says, “The trust must be coeval with the deeds, or it cannot exist at all.” “ The trust results from the original transaction
The same principle is declared m Rogers vs. Murray, (3 Paige, 398,) by Chancellor "Walworth, and in the elaborate opinion of Chancellor Jones, in White vs. Carpenter, (2 Paige, 217-238.)
How can the court ascertain the precise portions of the consideration furnished by the different contributors, so as to determine the exact quantity of the estate to be decreed to each ? For it is certain, that independent of the payment of five hundred dollars, made by the complainant when he obtained the contract from Wright and Knapp, Mary and David must be considered as furnishing portions of the consideration; the former by her bond, and the latter by his work and labor in the construction of the dwelling. As to the necessity of showing some definite portion of the consideration, vide Sayre vs. Townsend, 15 Wend. 647; White vs. Carpenter, supra; Smith vs. Burnham, 3 Sumn. 466.
We think it is impossible to say how much of this estate ought to be awarded to each of these parties, even if it were clearly shown that a trust existed in favor of all of them, and it .is not the duty of the court to supply, by a mere arbitrary allotment, this defect in the case.
Again, the complainant can claim no trust, by implication, from the payment of any part of the purchase money at the time of the conveyance. After the assignment of his interest in the contract for the lots, to his brother, David W. Whiting, the complainant was, for all the purposes of the present case, a
It follows then that a trust resulting from the payment of the consideration, could only have heen in favor of David W. and Mary E. Whiting, in proportion to the share of consideration furnished hy each of them.
But hy reference to the testimony of David W., (who was examined as a witness in the case,) we find that he claims to have acted as the agent of the complainant in the arrangement whereby the lots were conveyed to his sister, Mary, hy Mr. Janes, and assuming this to he true, and (as he swears) that “ he had no personal pecuninary interest in these lots,” althpugh Mr. Janes testifies that he professed to he the owner of the original contract, and entitled of course to all benefits from it, and as such had actually revoked and changed it in some respects, how can it he claimed that any trust would result to him ? He disclaims all interest in the property, (notwithstanding his attempt on another occasion, to render it liable as his own for the payment of his debts, hy virtue of the assignment by the complainant to him,) and the intention of both Mary and David, it is insisted, was to take the title for the benefit of Ebenezer. Here then is a complete
We may'here remark that David’s testimony is sufficient to destroy any implied trust in his favor, because where a trust may be shown by parol proof, it may also be rebutted or extinguished by the like kind of proof; its existence or non existence may thus be shown. (Vide Walker vs. Walker, 2 Atk. 98; Poe vs. Popham, Doug. 24; Botsford vs. Burr, supra; Stere vs. Stere, 5 John Ch. 1, 18.
From the view which we have taken of the case, it follows that neither the complainant, nor his brother David, had a trust estate in the property, and consequently the latter had no interest therein which could pass to the former by the transfer of the 20th March, 1850. The whole estate had vested in Mary long before that time, and had come under the control of her husband, (the defendant Gould,) by whom it was af-terwards sold to the defendant Hawkins, before David attempted to reconvey to the complainant. And even if David had a trust estate which he might convey to-the complainant, still this would not entitle him to relief on the case made by his bill, for he does not claim as' the assignee of David, but as' the original cestui gue trust.
In relation to the letters of Gould, introduced in evidence, we have only to say that without dealing in
In the argument of this case much stress was laid upbn the fact that the defendants had not insisted upon the statute of frauds, by plea or answer, as a de-fence. We cannot appreciate the objection. The bill merely sets up the trust in favor of the complainant, and does not contain any averment that it was created by deed or otherwise, as indeed it was unnecessary it should, because the court would intend that it was created in the manner required by law, unless the contrary appeared. In their answers, however, the defendants deny the existence of any trust, so that
It is unnecessary to discuss the mode of pleading the statute, and supporting the plea by an answer in cases of trusts, as- distinguished from cases of specific performance, where the trust or agreement insisted upon is admitted in the answer. On this subject see Story's Eg. Pl., p. 766-7, and note 1.
But there can be no difference in the kind of proof necessary, where the trust or agreement, as the case
For the reasons above given, we are of the opinion that the complainant has not shown himself entitled to the relief which he seeks as cestui que trust, and that therefore the decree of the Circuit Court in this cause ought to be reversed, and the bill dismissed.
Concurrence Opinion
I fully concur in every view which my brethren have taken of this case, and while the views just uttered are entirely conclusive in regard to the decree to be pronounced, another objection to recovery by the complainant has been so strongly impressed upon my mind that I deem it proper to state it here, as it also is fatal to the complainant’s case.
Ebenezer Gr. Whiting entered into contract with Wright and Knapp for the purchase of the land mentioned in the complainant’s bill, and paid $500 of the purchase money. On the perfermance of the other conditions or terms of the contract, he would become entitled to a deed. On the performance of these terms, had he directed the title to be taken in the name of Mary, or any other person, such person would become a trustee by implication of law. Or, in other words, a trust would have resulted from these transactions, in the holder of the title thus acquired, for the use of Ebenezer. But a few days after the execu
If A. purchase land of B. and pay his money for it, and takes the title in the name of 0., a trust results, by operation of law, in C. for the use of A. This trust arises not from the agreement, but from the transaction of the parties. It flows or results from the payment of the money into the land.
If A. purchases land from B. and pays him the price, and instead of taking a deed for the same, takes an agreement to pay at some future day, and at maturity of the contract has the title taken in the name of C., here also results a trust in 0. for the use of A., because the trust springs from the payment of the money by A. for or into the land. But if A., before the maturity of the contract, sells and assigns his contract to D., and at maturity D. directs the title to be made in the name of E., here no trust results by operation of law, because D. has paid no money for the land, but only for a chose in action, which is not the subject of a resulting trust. He invested his money, not in the land, but in the contract which would enable him to demand the title for himself or his assigns. If he directed the deed to be made to E,, the latter might be a trustee of D., and if the trust were declared in
I by no means deny that a resultant trust, already vested, may be assigned. But I do deny that the transactions of one party, out of which a trust may spring at a future day, may be beneficially transferred to another ; or, in other words, that the parties may be so transmitted that the one may take the place of the other by the mere act of bargain and sale.
Whenever a trust results by operation of law, it does so independent of contract. It is the vital energy of the law, called into operation by the transactions of the parties ; it is the equitable spirit of the law, springing out of the land in behalf of him, who has invested his money therein. In its very nature it is contradistinguished from the rights and interests which arise out of contract. For this reason a resulting trust need not be evidenced by writing.
Every interest which the assignee of the agreement to convey the land possesses, rests and necessarily rests in contract, and in nothing else. He has performed no act that does not rest for its verification in contract. As no trust had vested in the original vendor at the time of his assignment, he could pass none to his assignee. As an implied trust results from the transaction of the parties, and not from their contract, there can be no contingent or inchoate trust of that class. When the original vendee, who has paid the purchase money and taken a contract, assigns that contract before the deed is due, he thereby extinguishes every possibility of a trust resulting from his transaction. As all of the rights of his assignee arise out of his contract of assignment, it follows that any
The application of these principles and doctrines to the case under consideration, is fatal to the complainant’s bill of complaint.