Dorr v. Clapp
| Decision Date | 28 February 1894 |
| Parties | DORR v. CLAPP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
In 1888 Peleg F. Clapp took a conveyance of land and paid for it with money furnished wholly by Augustus Russ. The written agreement between them recited that Augustus Russ had furnished all the money for the purchase, and provided that "the equity in said real estate is, and shall be until some sale and conveyance thereof is made, owned by the said Clapp and the said Russ in equal shares;" that the "net income of said property" "shall be equally divided between said Russ and said Clapp;" that Clapp should collect the rents, superintend the repairs, and make no charge for such services; and that Russ "will at any time within 18 months," accept a deed from Clapp "conveying as good title as received, to his half." Russ died June 7, 1892, and June 21, 1892, the real estate of Peleg F. Clapp was conveyed to Howard Clapp by indenture of trust for the benefit of Peleg F. and family. May 3, 1893, Howard Clapp sold the land in question, and plaintiff seeks to recover one-half of the net profits.
Francis R. Jones, for complainant.
Clapp & Glover, for respondent.
We are of opinion that the meaning of the agreement, on its face, is that, as Russ has advanced all the money for the purchase, he shall have one-half of the profit of the venture, if there is any, as well as the amount of his advance and interest, and that, to this end, he shall be owner of one-half of the equity until a sale, and then, by implication, that he shall own, or be entitled to, one-half of the proceeds.
The defendant contends that, even if this is the meaning of the instrument, yet, as there is no mention of Russ' heirs it must fail of its intent, and give him only a life estate. But we cannot agree to the argument. This is not the case of a formal conveyance creating a trust, as in McElroy v. McElroy, 113 Mass. 509. It is a memorandum of a bargain previously made, and is put in writing to satisfy the statute, (Pub.St. c. 141, § 1,) and to furnish evidence. This is apparent on the face of the writing. It is agreed that the equity in the real estate is, as well as that it shall be, owned by Clapp and Russ in equal shares; and a reason is stated which, even if not true or binding in such a sense as to show a resulting trust, shows a consideration, goes back to the beginning of the transaction, and imports that...
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