This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
40. 1 Perry, Trusts, Sec. 117; 1 Ames, Cas. Trusts, 87 et seq.
41. Jones v. Wilson, 60 Ala. 332; Noble v. Learned, 153 Cal. 245, 94 Pac. 194; Mitchell v.
Turner 117 Ga. 958, 44 S. E. 17; Lane v. Lane, 80 Me. 570, 16 Atl. 623; McKee v. Allen, 204 Mo. 655, 103 S. W. 76; Young v. Young, 80 N. Y. 22.
42. Mulroy v. Lord, 4 De G. F. & J. 264; Richard v. Delbridge, L. R. 18 Eq. 11; Noble v. Learned, 153 Cal. 245, 94 Pac. 1047; Truby v. Pease, 240, 111. 513, 88 N. E. 1005; Stokes v. Sprague, 110 Iowa, 89, 81 N. W. 195; Norway Savings Bank v. Merriam, 88 Me. 14G, 33 Atl. 840; Loring v. Hildreth, 170 Mass. 328; In re Soulard, 141 Mo. 642, 43 S. W 617; Marcy v. Amazeen, 61 N. H. 13; At. 60 Am. Rep. 320; Wadd v Hazleton, 137, N. Y. 215, 33 N. E. .143, 33 Am. St. Rep. 707, 21 L. R. A. 693; quently boon recognized in the case of an intended gift by a husband to bis wife, which was, previous to the Married Women's Property Acts, invalid for the purpose of vesting the legal title in the wife,43 an exception to the general rule which is, it appears, the basis of the assertion frequently made that a gift or conveyance by husband to wife, though invalid at law, is valid, or may be sustained, in equity.44
- (c) Necessity of writing. The Statute of
The statute, instead of requiring the trust to be manifested and proved by writing, requires it to be created or declared in writing.52 Consequently the writing is sufficient for the purposes of the statute regardless of its form, and irrespective of whether it was the intention thereby to create a trust. For instance, a conveyance, a letter, a receipt, or a pleading, if properly signed, and containing an admission of the trust, is sufficient.53
The latter's signature.48 But though one cannot, after disposing of land, bind it by a declaration of trust, he may do so, it appears, before acquiring the land. That is, a statement by one of his intention to hold certain property, on its subsequent conveyance to him, in trust for another, by means of which he obtains a conveyance of the property, is sufficient to satisfy the statute, if it bears his signature.49
Writing, or by a conveyance or instrument in writing.46 In a very considerable number of states there is no statute expressly requiring a writing in order that a trust in land be valid or enforceable, and in these states, ordinarily, the view has been taken that no writing is necessary.47
Frauds (29 Car. II. c. 3, Sec. 7 [A. D. 1677]) provides that all declarations or creations of trusts of lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing. Previous to the passage of this statute, such a trust could be proven by parol evidence.45 In some states there is a statute substantially similar in phraseology to the English statute, in some the statute requires a trust in land to be created or declared in
Flanders v. Blandy, 45 Ohio St. 108, 12 N. E. 321;In re Smith, 144 Pa. 428, 22 Atl. 916, 27 Am. St. Rep. 641.
43. Maxwell v. Grace 85 Ala. 577, 5 So. 319; Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796, 46 Am. St. Rep. 151; Denning v. Williams, 96 Conn. 226, 68 Am. Dec. 386; Johnson v. Hines, 31 Ga. 720; Campbell v. Galbreath, 12 Bush, 459; Adams v. Brackett, 5 Mete. (Mass.) 280; Crawford v. Whitmore. 120 Mo. 144, 25 S. W. 365; Miller v. Miller, 17 Oreg. 423, 21 Pac. 938; Garner v. Garner, Busbee, Eq. 1; McCamp-bell v. McCampbell, 2 Lea (Tenn.) 661, 31 Am. Rep. 623; Powell v. Powell, 9 Humph. (Tenn.) 477; Wheeler & W. Mfg. Co. v. Monahan,
63 Wis 198, 23 N. W. 127; Mc-Kenzie, v. R. Co., 27 W. Va. 306.
44. See, e. g., Graig v. Chandler, 6 Colo. 543; Kellogg v. Hale, 108 111. 164;Frank v. Kessler, 30 Ind. 8; Ogden v. Walters, 12 Kan. 282; Jones v. Jones, 18 Md. 464; Ratliffe v. Dougherty, 24 Miss. 181; Botts v. Gooch, 97 Mo. 88, 10 Am. St. Rep. 286, 11 S. W. 42; Hunt v. Johnson, 44 N. Y. 27; Warlich v. White, 86 N. C. 139, 41 Am. Rep. 453; Crooks v. Crooks, 34 Ohio St. 610. Sayers v. Wall, 26 Gratt. 354, 21 Am. Rep. 303; Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. 410; Hannan v. Oxley, 23 Wis. 519.
45. Lewin, Trusts (12th Ed.) 53; 1 Perry, Trusts, Sec. 75.
The person whose signature to a writing is necessary to evidence the trust is the person who has the ability to dispose of or incumber the property, ordinarily the owner thereof. The requirement of the statute is usually satisfied by a writing signed by one who at the same time conveys the land to another, his declaration of trust being a part of the instrument by which he conveys the land, and the grantee consequently taking subject to the trust. As in the case of a conveyance by A to B in trust for C, A's signature to the instrument being sufficient to evidence the trust as against B. If the grantor of land docs not, at the time of the execution of the conveyance, make a declaration of trust subject to which the grantee is to hold the land, he cannot subsequently do so, and any subsequent declaration or acknowledgment of trust, in order to bind the land in the hands of the grantee, must bear
46. 1 Ames, Cas. Trusts, 176; 1 Perry, Trusts, Sec. 78; Browne, Stat. of Frauds Sec.Sec. 79-113, and appendix to fourth edition.
In Maryland the English statute is in force. See Alexander's British Statutes in force in Maryland.
In Connecticut an express trust in land cannot be shown oraliy. Todd v. Munson, 53 Conn. 579, 4 Atl. 99. In Dean v. Dean, 6 Conn. 285, it is said that to allow this would involve a violation of the Statute of Frauds, a statement which presumably refers to the English Statute, as there appears to be no local statute on the subject.
47. 1 Ames, Cas. Trusts, 177; Hall v. Livingston, 3 Del. Ch. 348; Vizard Inv. Co. v. York, 167 Ky. 634, 181 S. W. 370; Lutz v. Hoyle, 167 N. C. 632, 83 S. E. 749; Harvey v. Gardner, 41 Ohio St. 642: Hay-wood v Ensley, 8 Humph. (Tenn.) 460; Mee v. Mee, 113 Tenn. 453,106 Am. St. Rep. 865. 82 S. W. 830; Clark v. Haney, 62 Tex. 511, 50 Am. Rep. 556; Young v. Holland, 117 Va. 433, 84 S. E. 637; Fleenor v. Hensley, 121 Va. 367, 93 S. E. 582; Swick v. Rease, 62 W. Va. 557, 59 S. E. 510.