This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
4 Lester v. White, 44 111. 464.
5 East Omaha Land Co. v. Hansen, 117 la. 96; 90 X. W. 705.
6 Gilbert v. Bulkley, 5 Conn. 262; 13 Am. Dee. 57.
7 Norton v. Webb, 35 Me. 218.
8 Reed v. McGrew, 5 Ohio 375; Miller v. Roberts. 18 Tex. 16: 67 Am. Dec. 688; Staley v. Hankla (Tex. Civ. App.), 43 S. W. 20.
9 Hughes v. Moore, 7 Cranch. (U. S.) 176; Masterson v. Little, 75 Tex. 6S2; 13 S. W. 154.
1 Deiderick v. Alexander. 58 Kan. 56; 48 Pac. 594; Haeberle v. Day, 61 Mo. App. 390.
1 Hughes v. Moore, 7 Cranch. (U. S.) 176; Richards v. Richards. 9 Cray (Mass.) 313: Scott v. McFar-land, 13 Mass. 309; Wendover v.
B for the purchase of certain realty, which is sufficient in equity to give A an equitable interest in such realty, a contract whereby A agrees to transfer his interest in such contract to X is within the statute.2 So if A has bought an interest in realty at an execution sale,3 or a sale in foreclosure,4 a contract whereby he attempts to transfer such interest to X is within the statute.5 Hence if A and B have made a contract whereby A agrees to sell realty to B, and this contract is such as to pass to B either a legal or an equitable interest in such realty, an oral rescission of this contract is within the statute of frauds.6 However, under a contract which requires an interest in land to be transferred only by act or operation of law or by conveyance in writing subscribed by the party granting, it has been held that a surrender of a contract for the sale of realty, made by vendee to vendor with intent of both parties to extinguish vendee's equity, is a compliance with the statute.7 In most jurisdictions a conveyance absolute on its face cannot be turned into an express trust by oral agreement.8 In Ohio the courts have said that an oral contract may create an express trust, although the conveyance is absolute on its face,9 if the declaration of the trust
Baker, 121 Mo. 273; 25 S. W. 918; Bedell v. Tracy, 65 Vt. 494; 26 Atl. 1031; Cauble v. Worsham, 96 Tex. 86; 97 Am. St. Rep. 871; 70 S. W. 737.
2 Richards v. Richards, 9 Gray (Mass.) 313.
3Littell v. Jones, 56 Ark. 139; 19 S. W. 497; Whiting v. Butler, 29 Mich. 122.
4 Cox v. Roberts, 25 Ind. App. 252; 57 N. E 937.
5 Whether the execution sale itself is within the statute see Sec. 665.
6Catlett v. Dougherty, 21 111. App. 116; Fisher v. Koontz. 110 la. 498; 80 N. W. 551 (citing Devin v. Himer, 29 la. 297; Dunlap v. Thomas, 69 la. 358; 28 N. W. 637; Stem v. Nysonger, 69 la. 512; 29 N. W. 433; Harlan v. Harlan, 102 la. 701; 72 N. W. 286); Grunow v.
Salter, 118 Mich. 148; 76 N. W. 325; Sanborn v. Murphy, 86 Tex. 437; 25 S. W. 610; affirming, 5 Tex. Civ. App. 509; 25 S. W. 459; Cunningham v. Cunningham, 46 W. Va. 1; 32 S. E. 998.
7Hogue v. Ins. Co., 116 Wis. 656; 93 N. W. 849.
8 Sherman v. Sandell, 106 Cal. 373; 39 Pac. 797; Feeny v. Howard, 79 Cal. 525; 12 Am. St. Rep. 162; 4 L. R. A. 826; 21 Pac. 984: Hass-hagen v. Hasshagen, 80 Cal. 514; 22 Pac. 294; Burden v. Sheridan, 36 la. 125; 14 Am. Rep. 505; Sturte-vant v. Sturtevant, 20 N. Y. 39; 75 Am. Dee. 371.
9 Mannix v. Purcell, 46 O. S. 102; 15 Am. St. Rep. 562; 2 L. R. A. 753; 19 N. E. 572; Harvey v. Gardner, 41 O. S. 642; Ryan v. O'Connor. 41 O. S. 368; Mathews v. Leaman, is contemporaneous with the conveyance.10 An implied trust can be proved by oral evidence.11 As a rule, from the nature of the case, oral evidence is the only kind that is available in such cases, and to exclude it would he substantially the same as to refuse to enforce implied trusts.
In some jurisdictions a trust which can be shown only by oral evidence cannot be released even to the holder of the legal title by oral agreement.12 If A has acquired the legal title to realty of which B is the owner in equity, under such circumstances that A may be held as trustee for B, as where A gets a patent from the government by making a wrongful use of the name of B, who owned a plat and a certificate of survey of such realty,13 a contract whereby B releases his claim to such realty is within the statute.
However, if a trust can be shown only by oral evidence, oral evidence is admissible to rebut such trust,14 and in some jurisdictions this rule has been extended so that oral evidence which does not deny the original existence of the trust is admitted to show that it has been released to the holder of the legal title,15 or to show that additional terms have been added to the trust by oral agreement.16 Under this view an oral agreement between A, who has agreed orally to buy realty from B and has been put in possession, and is to have the legal title on the payment of a certain sum, whereby it is further agreed that B is to retain the legal title as security for a further sum loaned by B to A, is not within the statute.17
24 O. S. 615. In many of these cases, however, either the evidence was in writing or the facts were such as to create an implied trust.
10 Russell v. Bruer, 64 0. S. 1; 59 N. E. 740.
11Corr's Appeal, 62 Conn. 403; 26 Atl. 478; Towle v. Wadsworth, 147 111. 80; 30 N. E. 602; 35 N. E. 73; Maroney v. Maroney, 97 la, 711; 66 Pac. 911; Ripley v. Seligman, 88 Mich. 177; 50 N. W. 143; Newton v. Taylor, 32 O. S. 399; Currence v. Ward, 43 W. Va. 367; 27 S. E. 329.
12 Hughes v. Moore, 7 Cranch (U.
S.) 176; Darling v. Butler, 45 Fed. 332; 10 L. R. A. 469.
13 Hughes v. Moore, 7 Cranch. (U. S.) 176.
14 Livermore v. Aldrich, 5 Cush. (Mass.) 431; Wiser v. Allen, 92 Pa. St. 317.
15 Rogers v. Tyley, 144 111. 652,-32 N. E. 393; Stall v. Jones, 47 Neb. 706; 66 N. W. 653; Shaw v. Walbridge, 33 O. S. 1; Temple v. Dodge, 11 Tex. Civ. App. 42; 31 S. W. 686.
16 Alomania, etc., Co. v. Franzreb, 56 O. S. 493; 47 N. E. 497.