This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Jackson v. Moore, 6 Cowen (N. Y.) 706.
2 Ambrose v. Ambrose, 1 P. Wms. 321; Wilson v. Dent, 3 Sim. 383.
3 Gardner v. Rowe, 2 Sim. & S. 346.
4 Price v. Brown, 4 S. C. 144. See Smith v. Howell, 3 Stockt. (N. J.) Ch. 349.
5 Forster v. Hale, 5 Ves. 308; O'Hara v. O'Neil, 7 Bro. P. C. 227; Crook v. Brooking, 2 Vern. 50; Morton v. Tewart, 2 Young & C. 67; Steere v. Steere, 5 Johns. (X. Y.) Ch. 1; Movan v. Hays, 1 Johns. (N. Y.) Ch. 339; Maccubbin v. Cromwell, 7 Gill & J. (Md.) 157; Wright v. Douglass, 7 N. Y. 564; Day v. Roth, 18 N. Y. 448; Newkirk p. Place, 47 N. J. Eq. 477; McCandless v. Warner, 26 W. Va. 754; Taft v. Dimond, 16 R. I. 584.
6 Barrell v. Joy, 16 Mass. 221.
7 Barrow v. Greenough, 3 Ves. Jr. 151; Lewin on Trusts, 30; Roberts on Frauds, 95; Smith v. Matthews, 3 De G. F. & J. 139. In Homer v. Homer, 107 Mass. 82, the entry in the book did not sufficiently declare the trust. And see Urann v. Coates, 109 Mass. 581; Ames v. Scudder, 83 Mo. 189.
8 Steere v. Steere, 5 Johns. (N. Y.) Ch. 1.
1 O'Hara v. O'Neil, 7 Bro. P. C. 227; Forster v. Hale, 3 Ves. Jr. 696.
2 Deg v. Deg, 2 P. Wms. 412; Bellamy v. Burrow, Cas. Temp. Talb. 97; Kirk v. Webb, Prec. Ch. 84; Hutchinson v. Tindall, 2 Green (N. J.) Ch. 357; Wright v. Douglass, 7 N. Y. 564.
3 Barrell v. Joy, 16 Mass. 221.
1 Hutchinson v. Tindall, 2 Green (N. J.) Ch. 357. See Hutchins v. Van Vechten, 140 N. Y. 115. 2 Forster v. Hale, 5 Ves. 308.
§ 100. With more formal instruments of manifestation, there will generally be little difficulty It has before been observed, incidentally, that a recital in a deed was a good manifestation of a trust, and the same is true of a deposition of the trustee, signed and sworn to by him, and fully and clearly setting out the terms of the trust.2 So of a recital in a bond.3 So, also, the answer of the defendant in a suit to enforce the trust, admitting it as charged, is clearly a good manifestation within the statute;4 or even an answer, made by the party to be charged in another suit, not inter partes, may bind him.5
§ 101. In Hampton v. Spencer, decided a few years after the Statute of Frauds was enacted, the plaintiff, in consideration of £80 paid by the defendant, conveyed a house and surrendered a copyhold estate to the defendant and his heirs; the bill was for a reconveyance on payment of the remainder due of the £80 and interest. The defendant, by answer, insisted that the conveyance was absolute to him and his heirs, without any promise, clause, or agreement that the plaintiff might redeem; but he confessed that it was in trust that after the £80 with interest was paid, the defendant should stand seised for the benefit of the plaintiff's wife and children, although no such trust was declared by writing. The trust was not charged in the bill. For the plaintiff it was insisted that he having replied to the defendant's answer, who had not made any proof of such pretended trust, the defendant was bound by his confession that he was not to have the estate absolutely to himself, and no regard ought to be had to the matter set forth in avoidance of the plaintiff's demands, because the defendant had not proved it; yet the court decreed the trust for the benefit of the wife and children.1
1 Roberts on Frauds, 102. This view is confirmed by a comparison with those cases in which it has been held that a signature (under the fourth section) by a subscribing witness who knew the contents of the paper was a signature within the statute. See, in particular, Welford v. Beazely, 3 Atk. 503, where Lord Hardwicke said that "the word party in the statute is not to be construed party as to a deed, but person in general, or else what would become of those decrees where signing of letters, by which the party never intended to bind himself, has been held to be a signing within the statute." And see Urann v. Coates, 109 Mass. 581.
2 Ante, § 99; Pinney v. Fellows, 15 Vt. 525.
3 Gomez v. Tradesmen's Bank, 4 Sandf. (N. Y.) 102.
4 Nab v. Nab, 10 Mod. 404; Ryall v. Ryall, 1 Atk. 59; Maccubbin v. Cromwell, 7 Gill & J. (Md.) 157; Jones v. Slubey, 5 Harr. & J. (Md ) 372; Patton v. Chamberlain, 44 Mich 5.
5 Cook v. Barr, 44 N. Y. 156. See Haigh v. Kaye, L. R. 7 Ch. 469.
§ 102. This case decides, it seems, that the answer of a defendant, setting up a trust in favor of third parties, will be sufficient evidence of it to defeat a complainant's equity, in a suit brought to recover or charge the land, and not alleging the trust. In this view it certainly conflicts with the principle that a defendant cannot by his answer discharge himself, but must establish his matter in avoidance by proof. It does not appear ever to have been followed in England nor in this country. In a case in Chancery in New Jersey, where a deed was made, absolute on its face and without any actual consideration paid, and on a bill to set it aside as obtained by fraud, the answer admitted that no part of the consideration was paid, but averred that the defendant held it in trust for the wife and children of the grantor (the plaintiff), and proffered willingness to execute a declaration of trust or secure the interest of the wife and children in any way the court should direct; it was held that such an answer, not being responsive to the bill, was not evidence of the trust. Chancellor Vroom said: "I am inclined to believe that if the present complainant had filed a bill claiming this deed to be a deed of trust, and praying that it might be so decreed, according to the original intention of the parties, the answer of the defendant, admitting the trust, would have been good evidence of it. It would have amounted to a sufficient declaration of the trust. But it would seem to be different where a complainant seeks, on the ground of fraud, to set aside a deed absolute on the face of it, and confessedly without any actual consideration paid; for ... to suffer a defendant in such case to come in and avoid the claim by setting up a trust, would be to permit him to create a trust according to his own views, and thereby prevent the consequences of a fraud."1 The position here taken seems to have been adopted also in the courts of Maryland.2