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.
§ 444 a. In Glass v. Hulbert, the Supreme Court of Massachusetts, by Wells, J., said that it makes no difference whether the want of a writing was accidental or intentional, and that so long as the effect of the fraud or mistake extends no further than to prevent the execution, or withhold from the other party written evidence of the agreement, it does not furnish ground for the court to disregard the statute, and enter into the investigation of the oral agreement for the purpose of enforcing it.3 In this particular the decision has been criticised and perhaps with justice. The facts in that case were that the defendant, in the negotiations for the sale of the property, represented to the plaintiff that the boundary line of an adjoining estate ran to a certain indicated point, and if it did, a deed describing the land sold as bounded by that line would include the seventeen acres which the bill sought to have the deed aforesaid to include. As matter of fact the boundary line in question did not extend to the point indicated, and accordingly the deed, which described the land sold as bounded by that line (and it was agreed that the deed should be so drawn), failed to cover the seventeen acres. The question is whether the defendant's misrepresentation of fact, which induced the plaintiff to take the deed drawn in those terms, was not to be regarded as a fraud against which equity would relieve by decreeing a conveyance of the seventeen acres? On closely similar facts the Court of Appeals of New York has so held, expressly refusing to follow Glass v. Hulbert. The opinion says: "A party unfamiliar with the precise boundaries of a farm of land might not discover the omission of an inconsiderable portion of the same from a mere inspection of the papers. More especially might this be the case where such party had reason to believe that it was intended to include such portion in the conveyance. There is certainly strong ground for claiming that the plaintiff was deceived in regard to the description of the premises by the statements of the defendant."1
1 1 Eq. Cas. Abr. 19. In the report in 1 P. Wms. 620, the Lord Chancellor is represented as saying that the instructions to the counsel to prepare the writing were immaterial, since the party might still refuse to sgn after the writing was prepared. And see Glass v. Hulbert, 102 Mass. 30, 38; Equitable Gas Light Co. v. Baltimore Coal Tar & Mfg. Co., 63 Md. 285.
2 Finch, Prec. Ch. 528.
3 Glass v. Hulbert, 102 Mass. 30.
§ 445. Where the defendant, on a treaty of marriage with his daughter, signed a writing comprising the terms of the argeement, and afterward, designing to elude the force thereof and get loose from his agreement, ordered his daughter to put on a good humor and get the plaintiff to deliver up the writing and then to marry him, which was accordingly done, the Master of the Rolls decreed the execution of the agreement.1
1 Beanlsley v. Duntley, 69 N. Y. 580. See also Hitchina v. Petting-ill, 58 N. Y. 386; McDonald v. Youngblutter, 46 Fed. Rep. 836; Johnson v. Johnson, 8 Baxter (Tenn.) 261; Morrison v. Collier, 79 Indiana, 417.
§ 445 a. And it appears to be a general rule that where the verbal promise of the defendant to make a certain disposition of lands was the means of his obtaining to himself the legal title to lands, so that in fact he practises a deception upon his grantor, by so obtaining the lands and then holding and dealing with them as his own, a court of equity will compel him to perform his verbal engagement.2 This principle is recognized in the cases which hold that a conveyance of land absolute on its face may be shown by parol testimony to have been intended at the time as a mortgage.3 But where there is no deception practised in obtaining the title, but a mere verbal promise to make a certain disposition of land already acquired, the promisor will not be held as a trustee.4
§ 445 b. To this doctrine of equity, that a title obtained by a defendant by means of the verbal contract cannot be retained by him on the ground of the Statute of Frauds, may be referred the rule that where the title is obtained by one who holds a fiduciary relation to the plaintiff, he must surrender it to the plaintiff on the ground of that fiduciary relation, although he is, in doing so, peforming an oral contract to that effect.l
1 Mallet v. Halfpenny, 1 Eq. Cas. Abr. 20; 8. c. 2 Vern. 373, nom. Halfpenny v. Ballet. This case is related very graphically by Lord Chancellor Cowper, in Bawdes v. Amhurst, Finch. Prec. Ch. 404. He says he well remembered that this case was heard before the Master of the Rolls, and the plaintiff had a decree on the ground of the fraud, and "Halfpenny walked backwards and forwards in the court, and bid the Master of the Rolls observe the statute, which he humorously said, 'I do, I do.' "
2 Jones v. M'Dongal, 32 Miss. 179; Cousins v. Wall, 3 Jones (N. C.) Eq. 43; Fraser v. Child, 4 E. D. Smith (N. Y.) 153; Cameron v. Ward, 8 Ga. 245; Arnold v. Cord, 16 Ind. 177; Martin v. Martin, 16 B. Mon. (Ky.) 8; Hodges v. Howard, 5 R. I. 149; ante, §§ 94 et seq., and § 129; Hunt v. Roberts, 40 Me. 187; Nelson v. Worrall. 20 Ia. 469; Hidden v. Jordan. 21 Cal. 92; Coyle v. Davis, 20 Wis. 564; Servis v. Nelson, 14 N. J. Eq. 94; Catalani v. Catalani, 124 Ind. 54; Bohm v. Bohm, 9 Col. 100; Equitable Co. v. Baltimore Co., 63 Md. 285.
3 Babcock v. Wyman, 19 How. (U. S.) 289, and cases there cited; Jones v. Jones, 1 Head (Tenn.) 105. Ante, §§ 441 a, et seq.
4 Ante, §§ 94 et seq.
§ 446. Lord Keeper North, in a case arising a few years after the enactment of the statute, and where it was pleaded and the plea allowed, is reported to have been of opinion that if a plaintiff laid in his bill that it was part of the agreement that the agreement should be put in writing, it would alter the case and possibly require an answer.2 And he appears to have actually decided to that effect in the case of Leak v. Morrice, occurring shortly afterward at the same term.3 But Lord Thurlow, when the first of these cases was quoted before him, remarked that it was never decided, and added: "I take that to be a single case and to have been overruled. If you interpose the medium of fraud, by which the agreement is prevented from being put into writing, I agree to it;4 otherwise, I take Lord North's doctrine . . . to be a single decision, and contradicted, though not expressly, yet by the current of opinions."6 In speaking of it as a single decision, his Lordship would seem to have overlooked the case of Leak v. Morrice; but however the question might stand upon a view of the early authorities, the doctrine referred to has clearly not been recognized in those of later years. Indeed, as is remarked by an acute writer on