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 Steere v. Steere, 5 Johns. (N. Y.) Ch. 1.
1 Leman v. Whitley, 4 Russ. 426, 427. See Gallagher v. Mars, 50 Cal. 23.
2 Cook v. Barr, 44 N. Y. 156. But see Kingsbury v. Burnside, 58 111. 336. In the case of Jenkins v. Eldredge (3 Story, 289), Leman v. Whitley was referred to and disapproved, as improperly excluding parol evidence in cases of trusts, and Mr. Justice Story says he " should have had great difficulty in following it, even if there were no authorities which seemed fairly to present grounds for doubt," which authorities are Lees v. Nuttall, 1 Russ. & M. 53; Carter v. Palmer, 11 Bligh, N. R. 397; and Morris v. Nixon, 1 How. (U. S.) 118. With the greatest submission, it must be said to be doubtful whether the principle laid down in Leman v. Whitley has been denied or questioned in either of the decisions quoted. And it is remarkable that any qualification of that principle should have been intended, no reference being made to Leman v. Whitley in either of ing year, Jenkins applied to Eldredge for assistance in raising money to complete his enterprise; and it was agreed between them that Eldredge should take a conveyance of the premises from Deblois, which was accordingly done after the dismissal of the bill, and Jenkins executed a release to Eldredge by which he admitted in terms that he had "no legal or equitable right in or to the same." From that time forward Eldredge continued to be ostensibly, and, so far as the second title was concerned, the sole and exclusive owner of the legal and equitable estate in the premises. Jenkins was subsequently employed superintending the erection of the building. The necessary moneys were advanced chiefly by Eldredge, but in part, as it appeared, by Jenkins himself. The original intention of the parties was shown by parol evidence to be, that the whole legal and equitable estate should be in Eldredge, to enable him to raise money on it to complete building and discharge the encumbrances. Eldredge admitted that he had promised to make a deed of trust and place it among his papers, to provide for the contingency of his death, but denied that he ever made such a deed, or that he ever intended to fetter his legal and equitable estate in the premises. There was parol evidence that it was part of the original bargain that this declaration of trust should be made and preserved by Eldredge. It was contended on the part of the plaintiff that the case was taken out of the statute: 1. Because it was a resulting trust. 2. Because it was a case of agency. 3. Because Eldredge had been guilty of fraud in his conduct and operations. 4. Because the plaintiff had done acts of part performance, and could not now be reinstated in his former position without a decree for the specific execution of the trust. Judge Story's opinion was that the case was not to be considered as one standing purely or singly upon either of these grounds, but as embracing ingredients of all of them, and he examines the case in each view. Upon the first ground, namely, that Jenkins had a resulting trust in the estate, he says, p. 287, that "the plaintiff had expended a large sum of money on the premises; that Deblois never could have conveyed the same to Eldredge, without the plaintiff's express solicitation and consent; and that Eldredge was in no just sense a purchaser for his own sole account, giving a full value for the premises, but bought with a full knowledge of the enhanced value by the expenditures of the plaintiff, and for the purpose of giving the benefit of such expenditures as a resulting trust between the plaintiff and himself in the premises. In this respect, it approaches very nearly to the case of a joint purchase, where each purchaser is to have an interest in the purchase, in proportion to his advances. Now in such cases, parol evidence is clearly admissible to establish the trust, as well as to rebut, control, or vary it. It appears to me, that it may well be treated as a mixed case; quoad the plaintiff, as a resulting trust pro tanto, - and quoad Eldredge, as a trust pro tanlo for his liabilities, expenditures, and
§ 112. When we come to that part of our subject which relates to contracts, it will be seen that one of the most imthem. We should naturally desire to see those decisions placed upon some other ground, rather than conclude (as it seems we must) that they establish the absolute admissibility of parol evidence in cases of trusts. The two first-mentioned cases were mere cases of an agent abusing his agency to acquire the legal title contrary to the intention of his principal, such as have been before referred to, and are always excepted from the operation of the statute upon the ground of an implied trust, ex maleficio, in favor of the principal. The last is the common case of an absolute deed of land, proved by parol to have been actually made as security for a loan of money; such proof in that particular class of cases being allowed in the great majority of equity and even law courts of our country, and upon grounds quite unconnected with any construction of the Statute of Frauds. Mr. Justice Story, in his Equity Jurisprudence (§ 1199, note 2), refers to Leman v. Whitley as a case which stands upon the extreme boundary of the law as to the inadmissibility of parol evidence in cases of resulting trusts, and his condemnation of the case in his decision in Jenkins v. Eldredge is apparently pronounced under the same impression that it was a case of a resulting trust. But Sir John Leach expressly says in his opinion that it is not a case of a resulting trust, but of parol evidence offered to prove an express trust against the written documents in the case. From this and other remarks of Mr. Justice Story, it must be inferred that the intent of the decision in Leman v. Whitley was in some measure misapprehended by him. Jenkins v. Eldredge is a case itself which in all its bearings is highly interesting in relation to the whole subject of trusts as affected by the statute, and as it has been several times referred to in preceding pages, an abstract of its facts and the points decided is here presented. Jenkins purchased a piece of land of Deblois for $20,000, with a view to build on it for speculation. Being unable to comply with the conditions of sale, he agreed with Deblois that her warranty deed conveying the premises to him should, on the execution of the agreement and the payment of $1,000 to Deblois by Jenkins, be deposited with one Philips in escrow to be delivered to Jenkins if he should, before a certain day, pay Deblois $5,042.50, and execute a note to her for $15,127 payable in five years, and a mortgage of the premises to secure the payment of the note and taxes; otherwise the contract of sale to be null and void, and the $1,000 forfeited to Deblois. Jenkins paid the $1,000, and took possession of the land, and made excavations and commenced building upon it, expending, as his bill alleged, about $15,000. His means being exhausted, he was unable to pay the $5,000 on the day stipulated, and Deblois, pressing for payment, threatened to sell the premises at auction. Jenkins applied for and obtained an injunction, and a decree giving him about one year more in which to perform the contract, but he failed finally to do it, and his bill was dismissed. In the intervenportant questions to be settled is, whether in the memorandum of the contract the consideration is required to be expressed.