Bourke v. Callanan

• Decision Date: 29 November 1893
• Citation: 35 N.E. 460,160 Mass. 195
• Parties: BOURKE v. CALLANAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 195

35 N.E. 460

BOURKE v. CALLANAN et al.

Supreme Judicial Court of Massachusetts, Hampden.

November 29, 1893

COUNSEL

Wells, McClench & Barnes and Thomas A. Fitzgibbon for plaintiff.

T.M Brown, for defendant Callanan.

Robinson & Robinson, for defendant Stone.

OPINION

HOLMES, J.

This is a bill in equity seeking to charge the defendants with a trust in respect of certain land formerly belonging to the plaintiff and his brother, as copartners, and purchased by the defendants at a foreclosure sale. The only prayers are for an accounting for rents and profits, and for a decree for a conveyance upon payment of whatever is due from the plaintiff to the defendants. One ground relied on is that, the plaintiff's brother having no beneficial interest in the land, and the plaintiff wishing to get a clear title to it, and therefore wishing a mortgage on it to be foreclosed, the defendant Callanan promised him to go to the sale, and to bid off the property for him. The answer to this is that the promise was not in writing, that the defendant has the legal title to the land, and that he is not to be charged with a trust on the ground of an oral promise. Pub.St. c. 141, § 1; Emerson v. Galloupe, 158 Mass. 146, 32 N.E. 1118.

The other ground relied on is that there was a resulting trust, because the defendant made the purchase with the plaintiff's money. The mortgage sale was on June 25, 1889, at which date the defendant bid $35,500. On June 27th he received his deed, and gave a mortgage back for $33,000. The mortgage note was signed by the defendant personally and alone. At the same time, as we understand the master's report, which is a little obscure on these points, the defendant paid over $2,034.60 in cash, the remaining $465.40 being retained by him until a later date. On the same June 27th the defendant received from the plaintiff $1,437, and no more. It is impossible, therefore, to say that the consideration actually was furnished by the plaintiff at the time of the purchase. Payment of part of the consideration is not enough, and the mere fact that the defendant had agreed to buy for the plaintiff will not convert a payment of his own money into a loan to the plaintiff, and thus indirectly create a resulting trust, in the mode which we are discussing, out of an oral agreement, which could not be allowed any direct effect except in the teeth of the statute. See McGowan v. McGowan, 14 Gray, 119, a case very like the present. In Olcott v. Bynum, 17 Wall. 44, 59, where the purchaser paid cash advanced by the plaintiff, and gave a mortgage for the residue of the purchase money, the cash not having been paid for any aliquot part, it was held that the principle of resulting trusts had no application, and that, if it did, it could have no application in respect to the sum for which the purchaser gave his own obligation. McDonough v. O'Niel, 113 Mass. 92, was not intended to controvert or to qualify McGowan v. McGowan in any way. In that case the purchase was of an equity of redemption for cash, not of unincumbered land for cash and a mortgage back. The resulting trust was of the equity of redemption only. The defendant, it is true, made a new mortgage note, but not to the vendor, Godfrey, or at his requirement, but to the former mortgagee, Clements, at his requirement. This mortgage had been paid off by the plaintiff's testator before the bill was brought. In the opinion of a majority of the court, the plaintiff is not entitled to a conveyance of the property.

We are aware that by our construction of Pub.St. c. 141, § 1, the statute of frauds may be made an instrument of fraud. But that always is true whenever the law prescribes a form for an obligation. The very meaning of the requirement is that a man relies at his peril on what purports to be such an obligation without that form. Bragg v. Danielson, 141 Mass 195, 196, 4 N.E. 622; Parker v. Barker, 2 Metc. (Mass.) 423, 431. If the present case suggests the possibility that wrong may be accomplished through the...