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 Roberts on Frauds, 100.
2 Kirk v Webb, Prec. Ch. 84; Deg v. Deg, 2 P. Wms. 412; Young v. Peachy, 2 Atk. 254.
3 Willis v. Willis, 2 Atk. 71; Ryall v. Ryall, 1 Atk. 59; Finch v. Finch, 15 Ves. 43; Strimpfler v. Roberts, 18 Pa. St. 283.
4 Faringer v. Ramsay, 2 Md. 365.
5 Lake v. Lake, Amb. 126; Baker v. Vining, 30 Me. 121; Foster v. Trustees of Athenaeum, 3 Ala. 302; Welton v. Devine, 20 Barb. (N. Y.) 9; Livermore v. Aldrich, 5 Cush. (Mass.) 431; Baldwin v. Campfield, 4 Halst. (N. J.) Ch. 891; Wiser v. Allen, 92 Pa. St. 317.
6 Botsford v. Burr, 2 Johns. (N. Y.) Ch. 405.
7 Sugden, Vend. & P. 911.
8 St. John v. Benedict, 6 Johns. (N. Y.) Ch. 1ll; Elliott v. Armstrong, 2 Blackf. (Ind.) 198; Henderson v. Hoke, 1 Dev. & B. (X. C.) Eq. 119.
§ 93. It was formerly doubted whether parol evidence was admissible to show payment by a third person, in contradiction of the face of the deed expressing payment to have been by the nominal grantee,2 but it is now clearly settled in the affirmative.3 Indeed, as has been said by the Supreme Court of New Hampshire, such evidence does not go to contradict the statement in the deed that the grantee paid the money, but to show the farther fact that the money did not belong to him, but to the person claiming the trust.4 Whether parol evidence to show the ownership of the purchase-money is admissible in opposition to the answer of the trustee denying the trust, is doubted by Sir Edward Sugden, upon the authority of certain early English cases;5 but it is now settled, at least in this country, that it is admissible.6 It has been maintained by eminent English writers that parol evidence, even of the confessions of the nominal purchaser, cannot be received to set up a resulting trust after his death;7 but this position seems to be not now admitted in England, and in our courts may be fairly said not to prevail.8
1 See Edgerly v. Edgerly, 112 Mass. 175.
2 Kirk v. Webb, Prec. Ch. 84; Newton v. Preston, Prec. Ch. 103; Skett v. Whitmore, Freem. Ch. 280.
3 Livermore v. Aldrich, 5 Cush. (Mass.) 435; Page v. Page, 8 N. H. 187; Scoby v. Blanchard, 4 N. H. 170; Powell v. Monson & Brimfield Manuf. Co., 3 Mason (C. C.) 347; Gardner Bank v. "Wheaton, 8 Greenl. (Me.) 373; Pritchard v. Brown, 4 N. H. 397; Botsford v. Burr, 2 Johns. (N. Y.) Ch. 405; Boyd v. McLean, 1 Johns. (N. Y.) Ch. 582; Blodgett v. Hildreth, 103 Mass. 484.
4 Pritchard v. Brown, 4 N. H. 397; Scoby v. Blanchard, 3 N. H. 170.
5 Sugden, Vend. & P. 909, and cases there cited.
6 Boyd v. McLean, 1 Johns. (N. Y.) Ch. 582; Dorsey v. Clarke, 4 Harr. & J. (Md.) 551; Faringer v. Ramsay, 2 Md. 365; Baker v. Vining, 30 Me. 121; Elliott v. Armstrong, 2 Blackf. (Ind.) 198; Jenison v. Graves, 2 Blackf. (Ind.) 440; Blair v. Bass, 4 Blackf. (Ind.) 539; Page v. Page, 8 X. H. 187; Larkins v. Rhodes, 5 Port. (Ala.) 195.
7 1 Sanders on Uses, 123; Roberts on Frauds, 99.
8 Sugden, Vend. & P. 910, and cases there cited; Williams v. Hol-lingsworth, 1 Strobh. (S. C.) Eq. 103; Pinney v. Fellows, 15 Vt. 525;
§ 94. A few general observations should be made upon those implied trusts which arise in cases of fraud before proceeding to the subject of the manifestation or proof of express trusts required by the statute. The fraud which suffices to lay a foundation for such a trust is not simply that fraud which is involved in every deliberate breach of contract.1 The true rule seems to be that there must have been an original misrepresentation by means of which the legal title was obtained; an original intention to circumvent, and get a better bargain, by the confidence reposed.2 Thus, as Bank of the United States v. Carrington, 7 Leigh (Va.) 566; Enos v. Hunter, 4 Gilm. (1ll) 211. See Barnes v. Taylor, 27 N. J. Eq. 259.
1 Robertson v. Robertson, 9 Watts (Pa.) 32; Jackman v. Ringland, 4 Watts & S. (Pa.) 149; Whetham v. Clyde, Pa. Leg. Gaz. 53; Harper v. Harper, 5 Bush (Ky.) 176; Walter v. Klock, 55 111. 362; Durante. Davis, 10 Tenn. 522; Ryan v. Dox, 25 Barb. (N. Y.) 440. Upon appeal (vide same case, 34 N. Y. 307, reversing the former decision), the court seemed inclined to hold that the breach of the agreement was fraud, and although they did not so decide, the case is cited as an authority for that position, in Sandford v. Norris, 1 Tr. App. (N. Y.) 35; and see Soggins v. Heard, 31 Miss. 426. See also Wolford v. Herrington, 74 Pa. St. 311, where the distinction is pointed out between the breach of such an agreement, and that of an agreement between the parties to execute a writing, upon the faith of which promise reliance has been placed, so that a refusal to perform would be a fraud. But see Glass v. Hulbert, 102 Mass. 30; § 94 a, post. In Montacute v. Maxwell, 1 P. Wms. 620, Lord Chancellor Parker says: "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." In Jenkins v. Eldredge, 3 Story, 292, post, § 111, note, Mr. Justice Story dissents from the doctrine, even as applied to contracts in consideration of marriage, and says: "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." But certainly it would seem that if there be not some distinction such as was suggested in Montacute v. Maxwell, there is an end of the Statute of Frauds so far as courts of equity are concerned. McClain v. McClain, 57 Iowa, 167; Scott v. Harris, 113 111.447; Biggins v. Biggins, 133 111. 211; Randall p. Constans, 33 Minn. 329; Tatge v. Tatge, 34 Minn. 272; Von Trotha v. Bamberger, 15 Col. 1; Brock v. Brock, 90 Ala. 86.
2 McCulloch v. Cowher, 5 Watts & S. (Pa.) 427; Church v. Ruland, 64 has been held in many cases, if a man procure a certain devise or conveyance to be made to himself, by representing to the testator or grantor that he will see it applied to the trust purposes contemplated by the latter, he will be held a trustee for those purposes.1 In such cases, it seems to be requisite that there should appear to have been an agency, active or passive, on the part of the devisee or grantee in procuring the devise; it must appear that the testator or grantor was drawn in to make the devise or grant by the fraudulent representation or engagement of the devisee or grantee.2 In all such cases of resulting trusts arising ex maleficio, equity, to use the forcible expression of Chief Justice Gibson, turns the fraudulent procurer of the legal title into a trustee, to get at him.3