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.
It may be sufficient to remark, in reference to the writing required by the seventh section in cases of trusts, that all the compensation." He proceeds, p. 289: "In the next place, as to the agency. It appears to me, that here a confidential relation of principal and agent did exist; and that being once shown, it disables the party from insisting upon the objection, that the trust is void, as being by parol. The very confidential relation of principal and agent has been treated as, for this purpose, a case sui generis. It is deemed a fraud for an agent to avail himself of his confidential relation to drive a bargain, or create an interest adverse to that of his principal in the transaction; and that fraud creates a trust, even when the agency itself may be, nay, must be proved only by parol. ... In the next place, as to the asserted fraud. If, as the argument of the plaintiff supposes, Eldredge originally engaged in the undertaking with a meditated design to mislead the confidence of the plaintiff, and, by practising upon his credulity and want of caution, to get the title to the property into his own hands, and then to convert it into the means of oppressively using it for his own advantage and interest, I should have no doubt that the case would be out of the reach of the Statute of Frauds; for the rule in equity always has been, that the statute is not to be allowed as a protection of fraud, or as the means of seducing the unwary into false confidence, whereby their intentions are thwarted or their interests are betrayed." The learned judge here refers to Montacute v. Maxwell (1 P. Wms. 618-620), and to the opinion of Lord Chancellor Parker there expressed, that "in cases of fraud, equity should relieve, even against the words of the statute; . . . but where there is no fraud, only relying upon the honour, word, or promise of the defendant, the statute making those promises void, equity will not interfere." He dissents from that proposition, even as applied to cases of contracts in consideration of marriage, and then proceeds as follows: "I doubt the whole foundation of the doctrine, as not distinguishable from other cases which courts of equity are accustomed to extract from the grasp of the Statute of Frauds. It is not, however, necessary to consider, what should be the true rule in such a case; the present is not one of that nature, but stands upon very different grounds. I think, moreover, that there is one ingredient in the present case, which gives it a marked character, which is often relied on in cases of agreements on marriage, that Eldredge did agree to reduce the trust to writing, and to keep a private memorandum thereof in his own possession, as evidence, in case of his death or other accident. I do not accede to the statement, that this was a mere subsequent promise, long after the execution of the conveyances, as his answer imports; but it was a part of his original agreement, and upon the faith of which the arrangement was completed. He never did comply with that part of the agreement. He admits, that he never made any such memorandum. If he had made one, it might have swept away the whole of his present defence. I should not incline, however, to impute to Eldredge any such original premeditated reasons in favor of requiring the express statement of the consideration under the fourth section seem to hold good in relation to the other. There are two cases found in which this question has been passed upon, and in which it was decided that the consideration need not be expressed. One of them, intention of fraud as the argument of the plaintiff supposes, unless driven to it by the most cogent circumstances of necessity. And it does not seem to me necessary, in this case, to go to such a length. In my judgment, the result is the same, although the original design of Eldredge was perfectly fair and honorable, if he has since deviated from his duty, and attempted to absolve himself from the obligations of the trust, such as he knew the plaintiff believed it to be, and constantly acted upon; because, in point of law, it would be a breach of trust, involving a constructive fraud, such as a court of equity ought to relieve. ... In the next place, as to the ground of a part-performance on the part of the plaintiff. From what has been already suggested, there seems to me strong ground to support this suggestion. The plaintiff did, at the time of the conveyance to Eldredge, surrender up his present rights, or just expectations, under the contract with Deblois; he suffered his equity to expire, and he agreed to give up to Eldredge all claims which he might have to the premises; and consented to a direct conveyance thereof to Eldredge. He did more; he surrendered up all remuneration for his past advances and services, and also all remuneration for his future services, except so far as ultimately, after satisfying all other claims, there might remain a surplus of value of the property to indemnify him. It has been suggested, that he had, at the time, no claim upon Deblois for those advances, or services, or improvement of the property. I doubt, if, in equity, that doctrine is maintainable, if the value in the hands of Deblois had been greatly enhanced thereby. But upon this, to which allusion has been before made, I do not dwell. But I do put it, that none of these acts would have been done; and, above all, the release to Eldredge by the plaintiff would never have been executed, but upon the faith that the trust was to exist for the plaintiff's benefit, and the release was a part execution of the agreement between him and Eldredge. And here I cannot but remark, that the very exception in the deed of Deblois to Eldredge (a most fit and proper exception, under the circumstances, and upon which the release was designed to operate) 'excepting any claim or demand made by, through, or on account of Joseph Jenkins, and also excepting any claim or demand arising out of any contract made by or with said Jenkins,' - shows clearly that all the parties understood that Jenkins then had or claimed some right or title in the premises, and that the extinguishment of it was essential to the security of purchasers. So that, upon the ground of part-performance, there is much in the case to take the case out of the reach of the statute." however, was in Massachusetts, where it had been settled, for their own courts, that even the fourth section does not require the consideration to appear in the memorandum, and the other was upon an instrument under seal, a case excepted, even in England, from the application of the general rule.1