Brock v. Brock

• Decision Date: 27 May 1890
• Parties: BROCK v. BROCK.
• Court: Alabama Supreme Court

8 So. 11

90 Ala. 86

BROCK v. BROCK.

Supreme Court of Alabama

May 27, 1890

Appeal from chancery court, Calhoun county; S. K. MCSPADDEN Chancellor.

Brothers, Willett & Willett, for appellant.

Knox & Bowie and E. H. Hanna, for appellee.

SOMERVILLE J.

The bill is one filed by the appellant, Brock, against his wife seeking to establish in his behalf a trust in certain lands in the city of Anniston, which had been conveyed to her by him, and afterwards sold, the proceeds being retained by the wife. The husband had conveyed the lands to the respondent in September, 1880, after a separation between them, brought about by his own intemperate habits, and his unkind treatment of her. The deed was in fee-simple, free on its face from any words of condition or of trust. The land was probably worth about $2,000 when the deed was made. It was sold some seven years afterwards for $56,000. It is first insisted that the correspondence between the parties by letter establishes an express trust, the recognition of which will be enforced by a court of equity; and, Secondly, that, failing in the first contention, still the parol evidence establishes such fraud on the part of the grantee in obtaining the legal title as to constitute her a trustee ex maleficio. The original bill alleged that the deed was accepted by Mrs. Brock upon the verbal condition or promise that, if the complainant, who proposed going abroad, "returned home a sober man, free from his habits of dissipation," his said wife would "return to him, and live with him as his wife," and the deed in such event was to become "null and void, and of no effect;" otherwise the property was to be the wife's absolutely. A demurrer being sustained to the original bill, which, as we shall see, was manifestly without equity, it was amended by charging that "the promises made by his said wife, which led to the execution and delivery of said deed, conveying said land to her, were false and fraudulent at the time they were made, and were made by her with the intention of never complying with them at the time they were made." The answer of respondent explicitly denies the alleged promises, and all the averred facts from which any trust, express or constructive, could be inferred. The statute of frauds is also specially pleaded.

We propose, for the sake of brevity, and we trust without any sacrifice of clearness, to consider the two contentions of the appellant measurably together. It is so clear to our mind that the letters of the parties fail to contain anything from which an express trust can be inferred, that we do not deem it necessary to dwell at any length on this feature of the case. The letter of September 3, 1880, written by Brock to his wife delivered by one Sloan, and which accompanied the delivery to her of the deed, contains no allusion to the alleged promise or condition, but affirms, in effect, an unconditional delivery. "I send you," he writes, "the deed to the Woodstock place. You keep it yourself." There is nothing in the subsequent letters which furnishes any written evidence of such a trust. It is not declared, as we have said, in the deed itself. It does not appear in the letter accompanying the deed. No subsequent letter of the wife furnishes evidence of it. No subsequent letter of the husband, the alleged cestui que trust, would be competent to prove it. An interested party cannot be permitted by his own subsequent declarations, in writing or otherwise, to incorporate an express trust in an absolute conveyance previously executed by him. 2 Pom. Eq. Jur. § 1007. No such letters, moreover, are produced, nor are their contents satisfactorily proved even by secondary evidence. The correspondence can, however, he considered in connection with the oral evidence, relied on to show the alleged fraudulent contrivance on the wife's part to secure the legal title to the property. It is clear to us that, under the testimony in this case, the chancellor's ruling in dismissing the bill is justified by the principles declared by this court in Patton v. Beecher, 62 Ala. 579. If the conclusions reached in that case be correct, that, in our judgment, is an end of every plausible contention urged by the appellant in this case. Section 1845 of the present Code declares: "No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereunto in writing." This section corresponds with the seventh and eighth sections of the English statute of frauds, and is identical with section 2199, Code Ala. 1876, which was construed in the case of Patton v. Beecher, supra. The clearly-announced doctrine of that case is that the mere parol promise by the grantee in a deed that he will hold for the use of and reconvey to the grantor on request or on a specified contingency, is a trust which is required by the statute to be created or declared in writing; and that, if it is not so created or declared, in the absence of some clear evidence of fraud, imposition, or mistake at the time of the execution of the conveyance, the grantee's subsequent repudiation of the alleged parol promise is not a fraud against which a court of equity can relieve. The contrary doctrine, which seems to have been broadly announced in Barrell v. Hanrick, 42 Ala. 60, was repudiated. We can add nothing to the exhaustive argument embodied in the opinion of Chief Justice BRICKELL in that case. The summary of it is contained in the following extract: "The plain meaning of the statute is that a trust in lands, not arising by implication or construction of law, cannot be created by parol; that a writing signed by the party creating or declaring the

trust is indispensable to its existence. Fraud, imposition or mistake in the original transaction may constitute the purchaser or donee a trustee ex maleficio. It is fraud, then, and not subsequent fraud, if any exist, which justifies a court of equity in intervening for the relief of the party injured by it, as it is the payment of the purchase money at the time the title is acquired which creates a resulting trust, and not a subsequent payment, whatever may be the circumstances attending it. Barnett v. Dougherty, 32 Pa. St. 371. When the original transaction is free from the taint of fraud or imposition, when the written contract expresses all the parties intended that it should, when the parol agreement which is sought to be enforced is intentionally excluded from it, it is difficult to conceive of any ground upon which the imputation of fraud can rest, because of its subsequent violation or repudiation, that would not form a basis for a similar imputation whenever any promise or contract is broken. Wilson v. Watts, 9 Md. 356-436." It is an annihilation of the statute," forcibly continues the chief justice, "to withdraw a case from its operation because of such violation or repudiation of an agreement or trust it declares shall not be made or proved by parol. There can be no fraud if the trust does not exist, and proof of its existence by parol is that which the statute forbids. In any and every case in which the court is called to enforce a trust there must be a repudiation of it, or an inabliity from accident to perform it. If the repudiation is a fraud which justifies interference in opposition to the words and spirit of the statute, the sphere of operation of the statute is practically limited to breaches from accident, and no reason can be assigned for the limitation." Patton v. Beecher, 62 Ala. 579. The soundness of this reasoning seems to us unanswerable. The question involved has many times been argued before us, and the authority of this decision has frequently been challenged at the bar; but we have, without doubting the correctness of the principles stated, adhered to and reaffirmed the construction of the statute thus adopted in many subsequent deliverances more or less analogous. White v. Farley, 81 Ala. 563; Kelly v. Karsner, 72 Ala. 106; Rose v. Gibson, 71 Ala. 35; Whaley v. Whaley, Id. 159; Manning v. Pippen, 86 Ala. 357, 5 South. Rep. 572. The basis of this decision is the settled principle that a trust will never be raised by the breach of a mere verbal promise to purchase lands and convey them on request. Or, as stated by a learned author: "The fraud which suffices to lay a foundation for such a trust is not simply that fraud which is involved in every deliberate breach of contract." "The true rule," he adds, "seems to be that there must have been an original misrepresentation by means of which the legal title was obtained, and an original intention to circumvent, and get a better bargain, by the confidence reposed." Browne, St. Frauds, (3d Ed.) § 94. "But in no case will the grantee be deemed a trustee if he used no fraud or deceit in getting his title, although he verbally promised to hold the land for the grantor." Section 95. A like rule was long ago declared in Montacute v. Maxwell, 1 P. Wms. 618, where Lord Chancellor PARKER said, in reference to the English statute of frauds: "In cases of fraud, equity would relieve even against the words of the statute; but where there is no fraud, only relying upon the honor, word, or...