Page images

That the declaration of trust by the nominal purchaser at any time during his life, will be sufficient to establish it, and to establish it by relation to the time of the purchase, was strongly decided by Lord Cowper, in the above cited case of Ambrose v. Ambrose ;^ for unless such retroactive effect had been given to the subsequent declaration, the custom of London would have been let in during the interval between the purchase and the de-( claration, to entitle the widow to the interest and profits of the fund as personal estate.(46) Where land But if these restrictions are imposed on the admission of eviwiththe pur- tlence, when offered to show that a party has only purchased an chaser's own estate in behalf of another who really advanced the money,

money, whe- wnich is a case wherein the evidence seeks to create a trust by tner evi-' deuce may operation of law, it must follow, in consistency of principle, that

.how' ° a to comPel a conveyance from the purchaser of lands, bought the purchase with his own money, on the ground *of an alleged unwritten the* behalf of agreement by the defendant to purchase it on the plaintiff's be" another per- half, must fail as a still less plausible endeavour to overthrow the 8*"i 101 ] provisions of the statute; for in such a case the proofs would tend to set up a trust on the foundation of a special contract, without writing, and not to raise upon facts a resulting trust by operation of law. This was, however, attempted before Lard Keeper Henley, in the case of Bartlett v. Pickersgill but the bill was dismissed with costs. Nor was the plaintiff considered as standing on better ground, by having afterwards succeeded in a prosecution by indictment for perjury assigned as having been committed by the defendant in his answer to the allegations of the bill, by denying the agreement; for upon his coming again to equity after the conviction of the defendant, and

(6) Trin. T. 32 and 33 G. 2. in Chancery, vide 4 East, 577. MS. note, taken by Mr. J. Aston, and read by Lord Ch.J. ElVnborough.

(46) Where the purchase-money comes out of the pocket of the father of the nominal purchaser, this has been considered as a circumstance of evidence to rebut the resulting trust; at least, where the son has not been advanced, or but in part advanced, or emancipated. In which respect the law of trusts seems to agree with the law of uses, before the statute of uses; for if a man made a conveyance by feoffment to his son, no use resulted to the father by reason of the consideration of blood, which confirmed the beneficial interest to the son.

grounding thereon a petition for leavctn 5U; a supplemental bill,

the Lord Keeper treated the petition as lie had before done the

original application. '." \

We observe, that the clause of the statute respecting trusts is Of the dif. . . ferencc in

worded very differently from the Fourth Section, which requires tlle vvording

the agreement(47) itself to be in writing signed; whereas tile 0^j'^*1l'

Seventh Section requires only that all creations or declarations-of tions, the

trusts should be manifested and proved by some writing, signed -f""''." re

', . quiiinL. ;he ,

by the party. It is on the strength of this peculiarity in the agreeTCe'nt

wording of the clause, that letters and other written documents, Jtself .to be . in writing, though long posterior in date to the transaction *itself, have been the latter onadmitted in courts of justice to have an operation equivalent to l? thaf de' , J 1 ^ clarations of

that of a formal and coeval declaration of trust. Thus, in Fos- trusts should ter v. Hale,(c) the Lord Chancellor Loughborough entirely

agreed with the Master of the Rolls,(d) in adopting the letter as in writing,

u clear declaration of trust, by which, he said, he meant clear ^(ferenceTof

evidence in writing, that there was such a trust.' It is not neces- construction

sary, continued his lordship, that it should be a declaration, but a fn"sn^ifi.e°r

writing, signed by the party, may be evidence of a trust admit- ence in the

• . • • • 1'llltniHETP

ted in that writing. Nor is it necessary to produce an instrument » [ l] expressly framed for the purpose of acknowledging the trust; it is fully sufficient, if the recognition or admission of it is incidentally made in the course of a correspondence: and in the above case, though the parol declarations of the party were adverse to the inference of a trust, yet as a trust was clearly admitted by his correspondence, such evidence prevailed. It was in proof, indeed, that he had refused to execute a declaration, but it seemed to the court that such refusal had rather the aspect of tempo- • rary ill-humour, than of a deliberate denial of the trust. But when letters are to manifest a trust, there must be a clear demonstration that they relate to the subject. And it is also ne

(c) 5 Vez. jun. 308. (d) See the case as before his honour Sir P. Arden, 3 Vez.jun. 696.

(47) By the late case of Wain v. Warlters, 5 East 10, the court of K. B. has given a strong effect to these words requiring the agreement to be in writing; it is there regarded as making the comideration of the agreement necessary to be stated in writing, as being essentially constitutive of its legal efficacy, and properly making an integral part of it. See the second preliminary topic of this 1st part of the 3d chapter.

Of the mists implied for the sake of defeating fraud.

cessary to their effect*, fhat the trust should be proved in toto, though it appears ;aswcil from the above cited case of Forster v. Hale, as from, the-cases of Tawney v. Crowther^e) and O'Hara v. O'NeiljX/j'.that the terms may be supplied aliunde, and that if the letters afford evidence of the existence of a trust, supplementary proof as to the objects, and particulars thereof, may be dl»wn from any other documents.

But wherever a declaration of the trust has been prevented by fraud and deceit, or wherever the creation of a trust has offered itself as the means of frustrating fraudulent contrivance, and affording substantial justice to the victim of another's artifice, [ 103 ] courts of equity have not suffered the letter of *the statute to embarrass the relief, and to protect what it was framed to prevent. Thus in Thynn v. Thynn,(^) where a man made a will, and named his wife executrix thereof, and the son of the testator persuaded his mother to procure him to be appointed executor in her stead, by promising to be a trustee for his mother, which was accordingly done, and a new will made, giving but a small legacy to the wife; the son was made a trustee for his mother on the ground of fraud, notwithstanding the Seventh Section of the statute of frauds and perjuries. The relief has been uniform in similar cases, to some of which, among a great many in our books of equity reports, the reader is referred in the mar^in,(A) to save a tedious repetition; and to terminate with convenient brevity the discussion of these clauses of the statute, respecting the creation, declaration, and assignment of trusts, much of which has been anticipated in the introductory chapter.

(e) 3 Bro. C. R. 161, 318. (/) 2 Bro. P. C. 39. ( g) 1 Vern.296.

( A ) Roswell v. Every, 4 Vin. Abr. 395. pi. 3. Davenish v. Baincs, Prec. in Ch. 3. Reechv. Reimigatc, Ambl. 67. Barrow «. Grtenough, 3 Vez. jun. 152. . i


09 Car. 2, c. 3, sect. 4 and 17.

4th Sect. And be it further enacted by the authority aforesaid,
that from and after the said 24th day of June, 1677, no ac-
tion shall be brought, whereby to charge any executor or ad-
ministrator, upon any special promise, to answer damages out
of his own estate; 2, or whereby to charge the defendant
upon any special promise to answer for the debt, default, or
miscarriage of another person; 3, or to charge any person
upon any agreement 'made in consideration of marriage;
4, or upon any contract or sale of lands, tenements, or here-
ditaments, or any interest in or concerning them; 5, or upon
any agreement that is not to be performed within the space of
one year from the making thereof, unless the agreement upon
which such action shall be brought, or some memorandum or
note thereof, shall be in writing, and signed by the party to be
charged therewith, or some other person thereunto, by him
properly authorised.

17th Sect. And be it further enacted by the authority aforesaid, that from and after the said 24th day of June, no contract for the sale of any goods, wares, and merchandises, for the price of 10/. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memo- t randum in writing of the said bargain, he made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised.

_ •[ 105 ]

Order <,t the

•BEFORE the particular articles of these sections are separate- part'con

ly considered, it seems proper, first, with reference tothe subjects tainingpreli, r r . ... minarv and

thereol in general, to treat ol some important points, which, general topthough they might more naturally? perhaps, be brought into dis- les. F»rm

. <,f the agree

Mission under one or other of the distinct heads of the section, ment.2.Conyet having a general bearing, and being applicable to more than tcnts 3. Sl£" ^a-tai1' Cn" onC of lllose llcads' * navc thought it belter, for avoiding repeti

ccrning lion, to enter upon the examination of them in a general way;

lands, &c. reserving such matters as more distinctly appertain to the sevcj

3d part Con- . . *1

tracts for the ral provisions for a separate view of them under their proper ti

saleof goods, tles ln tne prosecution of which plan, in the first place, will be

and agree- r r

ments not to considered what constitutes a written agreement as to the form

cd within** thereo'>to satisrV 'nB requisitions of the statute; secondly, under

year. the same division or part will be inquired, what the written agree

raises^made ment or contract ought to comprise ; and lastly, what is a suflfi

in considcra- cient compliance with the statute in respect to the signing. After

riage maF' these Pomts' constituting the first part of this third chapter, shall

5th part. Pro- have been concisely treated, the separate consideration of the se

ecutors' &c" veralmatters of llie 4th section, and the provision constituting.

6th part. Col- the whole of the 17th section, will take up the remaining parts lateral pro- r,, . mises. of the.same chapter.


Form of the First Preliminary Topic.—An agreement, negotiated by word agreement, only, often becomes the subject of a subsequent correspondence Letters. in writing; frequent occasions, therefore, have arisen in courts of justice since the statute was made, to agitate the question, whether a letter, under particular circumstances, is a contract in writing within the terms and exigency of the 4th section of the statute. One general rule for determining the question in the majority of instances is furnished by the early case of Seagood v. Meale,(a) wherein it was held that a letter will never operate as a written agreement so as to satisfy the statute, unless it dis-, tinctly specifies or ascertains the terms of the agreement: for if • [ 106 ] it contain only evidence of *the existence of an agreement without fully declaring its purport, the substance of the contract is left to be explored through the medium of verbal testimony, in direct opposition to the statute of frauds. In the case last mentioned, a person had verbally agreed with another to sell him some houses, and in consequence of such agreement had written a note to a mortgagee of the premises, requesting him to deliver the writings, relating to the property, to the bearer, as he had agreed to dispose of them: it .was contended that this letter was a recognition of the contract in writing, and ought to be considered as sufficient to answer the intention of the statute; but the (a) Prec. Chan. 560.

« PreviousContinue »