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 Forster v. Hale, 3 Ves. Jr. 696; Burke v. Wilber, 42 Mich. 327. See Renz v. Stoll, 94 Mich. 377.
2 Steere r. Steere, 5 Johns. (N. Y.) Ch. 1.
3 Rutledge v. Smith, 1 McCord (S. C.) Ch. 119.
§ 110. A covenant to convey or hold lands, purchased or to be purchased, to certain uses, or a bond to convey lands, as the cestui que trust shall direct, is obviously equivalent to a declaration of trust.4 So, also, where a Revolutionary soldier entitled to bounty land delivered to one Birch (from whom by mesne assignments it came to the appellants) his discharge from the army, indorsing upon it the following: "This is to certify that the bearer, John Birch, is entitled to all the lands that I, Benjamin Griffin, am entitled to, either from the State or Continent, for my services as a soldier, certified in my discharge," Kent, C. J., held that this certificate was an assignment of Griffin's equitable claim to the land, was sufficient for that purpose without any words of inheritance, and amounted to a declaration of trust.1
1 Barrell r. Joy, 16 Mass. 221.
2 Arms v. Ashley, 4 Pick. (Mass.) 71.
3 Barrow v. Greenough, 3 Ves. Jr. 152. See Urann v. Coates, 109 Mass. 581.
4 Earl of Plymouth v. Hickman, 2 Vern. 167; Blake v. Blake, 2 Bro. P. C. 241; Moorecroft v. Dowding, 2 P. Wms. 314.
§ 111. Where there is any written evidence showing that the person apparently entitled is not really so, parol evidence may be admitted to show the trust under which he actually holds the estate. In the case of Cripps v. Jee, an estate being subject to certain encumbrances, the grantor mortgaged the equity of redemption, by deeds of lease and release, to two persons of the name of Rogers, as purchasers for a consideration stated in the deed, the real intention of the parties being that the Rogerses should be mere trustees for the grantor, and should proceed to sell the estate, and after paying the encumbrances should pay the surplus money to the grantor. In the books of account of one of the Rogerses, there appeared an entry in his handwriting of a year's interest paid to an encumbrancer on the estate, on account of the grantor, and other entries of the repayment of that interest to Rogers by the grantor, and there was also evidence of a note and bond given by the Rogerses to a creditor of the grantor, in which they stated themselves to be trustees of the estate of the grantor. Lord Kenyon held that this written evidence being inconsistent with the fact that the Rogerses were the actual purchasers of the equity of redemption, farther evidence by parol was admissible to prove the truth of the transaction.2 Parol evidence has also been admitted by Chancellor Kent to repel the inference of a trust from certain letters and accounts, in a case where the writings were of a loose and ambiguous character, the principle being however carefully reserved, that if the written proof had been clear and positive, it could not have been rebutted by parol.1 But in Leman v. Whitley, while the exception in favor of trusts partly proved in writing was recognized, the binding application of the Statute of Frauds to cases of mere parol trusts was firmly sustained. A son had conveyed an estate to his father, nominally as purchaser, for the consideration, expressed in the deed, of £400, but really as a trustee, in order that the father, who was in better credit than the son, might raise money upon it by way of mortgage for the use of the his own concerns at that time (being then under great infirmities of body and mind), and subject to a trust for the benefit of the plaintiff, if he should afterwards be in a capacity of taking care of his own affairs. No trust of any kind appeared on the face of the assignment, but upon the whole circumstances of the case, (viz.), the annuity reserved to the plaintiff being by no means an equivalent to the estate so disposed of, the recital in the deed of assignment that the plaintiff was under a disability at that time, of taking care of his own affairs, all the effects in general being assigned, as well as the leasehold estate, and after a general covenant in the deed from the defendant to indemnify the plaintiff against any breach of covenant in the original lease, and a special reservation to the plaintiff of all the timber, etc., and he set out and allowed timber for the repair of the estate (a circumstance principally relied on by the Lord Chancellor, as not at all reconcilable with an absolute disposition of the whole interest to the defendant), and other circumstances raising a strong presumption of a trust intended. Lord Chancellor (Hardwicke) admitted parol evidence to explain this transaction, viz., declarations by the defendant, at the time the deed of assignment was executed, and afterwards amounting to an acknowledgment of such a trust as the plaintiff now insisted upon; and his Lordship said such evidence was consistent with the deed, as there was all the appearance of an intended trust upon the face of it; but, however, though there can be no parol declaration of a trust, since the stat. of 29 Car. II., yet this evidence is proper in avoidance of fraud, which was here intended to be put on the plaintiff, for the defendant's design was absolutely to deprive the plaintiff of all the benefit of his estate. Hutchins v. Lee, 1 Atk. 447. But see Dyer's Appeal, 107 Pa. St. 446.
1 Fisher v. Fields, 10 Johns. (N. Y.) 495.
2 Cripps v. Jee, 4 Bro. Ch. 472; Lewin on Trusts.
62. The principle is somewhat illustrated in the following case, which, however, was decided long anterior to Cripps v. Jee, and apparently upon another ground. Bill filed to set aside an assignment of a leasehold estate, and all other the estate and effects of the plaintiff, upon a suggestion that the same was never intended as an absolute assignment for the benefit of the defendant, but made only to ease the plaintiff of the trouble and care of managing son. The father died shortly afterwards, before any money was raised, having by his will made a general devise of all his real estate. Sir John Leach, in holding the case to be within the Statute of Frauds, and that parol evidence was inadmissible to prove the trust, said: "There is here no pretence of fraud, nor is there any misapprehension of the parties with respect to the effect of the instruments. It was intended that the father should by legal instruments appear to be the legal owner of the estate. There is here no trust arising or resulting by the implication or construction of law." He then adverts to Cripps v. Jee and to the written evidence in that case, upon the strength of which Lord Kenyon had admitted the auxiliary parol proof, and adds: "There is here no evidence in writing, which is inconsistent with the fact that the father was the actual purchaser of this estate; and it does appear to me, that to give effect to the trust here would be in truth to repeal the statute of frauds."1 It would seem that the exception established in Cripps v. Jee, in favor of trusts partly manifested by writing, is difficult to reconcile with the plain language and policy of the statute requiring the trust (that is, the whole trust) to appear by written evidence; and that the determination in Leman v. Whitley, not to admit it unless clearly applicable, was wise and consistent.2