Bailey v. Hemenway

• Decision Date: 23 June 1888
• Citation: 17 N.E. 645,147 Mass. 326
• Parties: BAILEY et al. v. HEMENWAY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 326

17 N.E. 645

BAILEY et al. v. HEMENWAY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1888

COUNSEL E.R. Hoar and T.N. Talbot, for plaintiffs.

Upon the question of jurisdiction, the plaintiffs cite the following decisions: Barrell v. Benjamin, 15 Mass 354; Wright v. Oakley, 5 Metc. 400; Peabody v Hamilton, 106 Mass. 217; Pingree v. Coffin, 12 Gray, 304; Brown v. Desmond, 100 Mass. 267; Spurr v. Scoville, 3 Cush. 578; Massie v. Watts 6 Cranch, 158-160. Also, Dudley v. Bachelder, 53 Me. 403. The defendant's knowledge was not the knowledge of his individual co-partners. His action in this regard was without their "knowledge, consent, privity, or subsequent approbation." Lacey v. Hill, 4 Ch.Div. 549. In respect of payment, the trust fails only when the plaintiff has "made no payment" when he did not pay "any part of the purchase money." Botsford v. Burr, 2 Johns.Ch. 405; Bartlett v. Pickersgill, 4 East, 576, note; Smith v. Burnham, 3 Sum. 435; Pinnock v Clough, 16 Vt. 500. See McGowan v. McGowan, 14 Gray, 119, and Crop v. Norton, 2 Atk. 74, 9 Mod. 233. See, also, Wray v. Steele, 2 Ves. & B. 388; McDonough v. O'Neil, 113 Mass. 92; Heard v. Pilley, 3 L.R. 4 Ch. 548; Page v. Page, 8 N.H. 187; Boyd v. McLean, 1 Johns.Ch. 583; Buck v. Pike, 11 Me. 9; Pillsbury v. Pillsbury, 17 Me. 107.

William G. Russell and J.B. Richardson, for defendants.

OPINION

MORTON, C.J.

The statutes of Maine, like those of this commonwealth, provide that no action shall be maintained upon any contract for the sale of lands, or any interest in or concerning them, unless the contract, or some memorandum thereof, is in writing, and signed by the party to be charged; and that there can be no trust concerning lands, except trusts arising or resulting by implication of law, unless created or declared by some writing signed by the party or his attorney. The bill in this case, as amended, proceeds upon the ground that the three plaintiffs and the defendant Sullivan entered into an agreement that they would buy certain land and other property in Maine; that each was to have an interest of one-quarter in the purchase; that the defendant came to Boston, and, in violation of the agreement, procured a bond from the owners of the land and property, conditioned that they should convey the same, one-fifth to each of the plaintiffs, and two-fifths to the defendant; and it alleges that the plaintiffs, respectively, furnished money and credits, requisite for making said purchase, in the proportion of one-fourth each. The prayer is that the court decree that the defendant holds one-twentieth of the said two-fifths interest which he has under said bond as the trustee and for the sole benefit of each of the plaintiffs. The defendant pleads the statute of frauds, alleging that the subject of the agreement was principally land, and that the alleged agreement was not in writing, and there was no memorandum or note thereof in writing, and denying that the plaintiffs furnished each one-quarter of the money and credits necessary for the purchase. The master to whom the case was referred has found that an oral agreement was made, substantially as alleged in the bill, and that it was not reduced to writing, and no memorandum or note thereof in writing was signed by the defendant, and that the property purchased was principally land.

It is clear that the agreement in question, as it relates principally to land, is within the statute of frauds, and that no trust in the land, or in the equitable title acquired by the defendant under the bond, can be enforced against him unless there is a trust arising or resulting by implication of law. The doctrine in regard to resulting trusts is settled by numerous decisions, a few only of which need be referred to. When the money for the purchase of land is paid or furnished by one person, and the deed is taken in the name of another, there is a resulting trust created by implication of law in favor of the former. It is also true that, when one person pays the money for a specific share--an aliquot part--of the land, such as one-half or one-quarter, or other fixed fraction of the whole, and the title to the whole is taken in the name of another, a trust results in favor of the former for such aliquot part. But a general contribution of a sum of money towards the entire purchase is not sufficient to produce this result. When, therefore, one makes an oral contract with another that the latter shall buy land on joint account, and he, in violation of the contract, takes the deed to himself, no trust results in favor of the former, as to one-half of the land, unless it is shown that he furnished the money for the one-half; in other words, that it was bought with his money. McGowan v. McGowan, 14 Gray, 119; Fickett v. Durham, 109 Mass. 419; McDonough v. O'Neil, 113 Mass. 92; Parsons v. Phelan, 134 Mass. 109; Collins v. Sullivan, 135 Mass. 461; Dudley v. Bachelder, 53 Me. 403; Smith v. Burnham, 3 Sum. 435. These principles are decisive of the case at bar. The plaintiffs and the defendant entered into an...