Hanney v. Clark
| Decision Date | 08 April 1938 |
| Citation | 198 A. 577,124 Conn. 140 |
| Court | Connecticut Supreme Court |
| Parties | HANNEY v. CLARK. |
Appeal from Court of Common Pleas, New London County; Nathan Belcher, Judge.
Action by Flora G. Hanney against Guy B. Clark claiming a transfer of title to real estate, an accounting, and other relief brought to the court of common pleas and tried to the court. Judgment for defendant, and plaintiff appeals.
No error.
Samuel M. Gruskin and George C. Morgan, both of New London, for appellant.
Henry L. McGuire and Harry C. Brogan, both of New London, for appellee.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
The plaintiff brought this action claiming in her complaint that on May 7, 1930, her mother, Josephine W. Gadbois, late of East Lyme, conveyed to the defendant a farm in that town without consideration and upon the understanding and agreement that the title conveyed should be held by him in trust for the benefit of the plaintiff; that she had demanded that the defendant transfer title to her and that he had refused and neglected to do so. At the trial, the plaintiff introduced evidence of statements made by Mrs. Gadbois at or about the time the deed was made, and also statements made by the defendant at or about that time and subsequently, to the effect that the deed was given by Mrs. Gadbois to the defendant in trust to reconvey the property to the plaintiff. These statements were admitted by agreement of counsel on both sides, subject to objection and a later ruling by the court. After the close of the trial the court filed a memorandum of decision excluding the testimony and rendering judgment for the defendant, and the plaintiff has appealed. The vital question on this appeal is whether there was sufficient evidence of part performance of an oral contract to take the case out of the statute of frauds and permit evidence to be offered as to the terms of the oral contract.
In her appeal the plaintiff has asked certain additions to the finding, but the finding itself is not attacked, and discloses those pertinent facts: On November 1, 1929 Josephine Gadbois, mother of the plaintiff, owned a farm in East Lyme of eighty acres with a wood lot known as the Cold Spring Lot of twenty acres. There was a homestead, a seven-room cottage, and a few small barns upon the property and Mrs. Gadbois lived in the homestead with the plaintiff and the plaintiff's husband. About November 1, 1929, the defendant, who was in the sawmill business, purchased from Mrs. Gadbois the timber on the Cold Spring lot for $550. At that time there was an attachment upon the entire property in the amount of $6,000, in an action for wages brought by Mrs. Gadbois' son. The defendant subsequently became very friendly with Mrs. Gadbois and made frequent visits to her house until her death. About January 27, 1930, the Cold Spring lot was sold and the defendant made an arrangement with the attorney for the attaching creditor that the money received for the purchase price might be substituted in place of the attachment and the latter released. Thereafter the defendant requested the town clerk of East Lyme to draw a deed from the plaintiff's mother to him, which was brought by the defendant to Mrs. Gadbois' home and executed there by her in his presence and that of two attesting witnesses. At that time no money passed and nothing was said about payment. The value of the entire property at that time was $6,000, disregarding the part which had been sold and the attachment. On the evening of May 7, 1930, the town clerk of East Lyme was called to the Gadbois home by Mrs. Gadbois to take the acknowledgment of the deed. The defendant was not present. At the same time the town clerk was requested by Mrs. Gadbois to and did draw a bill of sale of the furniture in the house to the plaintiff. This bill of sale contained the following language: ‘ Household furniture and personal belongings of whatever nature contained in the dwelling house now occupied by me on the highway leading from Flanders to Chesterfield and recently sold by me to Guy B. Clark.’ The deed from Mrs. Gadbois to the defendant was a quitclaim deed, expressed to be for a valuable consideration, reserving a life estate to the grantor and contained no trust provision.
After execution of the deed the defendant had the use of part of the property with the permission of Mrs. Gadbois; and, in order to keep cattle therein, made small repairs to the barn. Mrs. Gadbois made a will on October 19, 1930, naming the defendant executor. She died March 27, 1931. Her will, after making bequests of money aggregating $1,500 together with various items of furniture and effects, left all her residuary estate, both real and personal, to the plaintiff. At the time the will was drawn, Mrs. Gadbois had no interest in real estate other than the farm. About December, 1933, the defendant, as executor of Mrs. Gadbois' estate, settled the claim upon which the attachment had been placed upon the property for $100 and charged the amount against Mrs. Gadbois' estate in his accounting. After the death of Mrs. Gadbois the defendant made no use of the property and the plaintiff and her husband continued to reside there paying no rent to the defendant. The plaintiff's husband made repairs to the premises, installing a new boiler and building a brooder, but it did not appear whether these improvements were made during the lifetime or after the death of Mrs. Gadbois. The defendant paid one year's back taxes and all the taxes and insurance premiums, except that for two years he gave the money to the plaintiff to pay the taxes upon her promise to repay him, which she failed to do. In August, 1930, he paid Mrs. Gadbois $148.85 and in December of the same year $25. On July 17, 1933, the defendant leased the small cottage to Mildred Orloff, with an option to purchase, and subsequent thereto she secured a judgment against him for specific performance of an agreement to convey the cottage. The plaintiff seeks of have added to the finding that the repairs made by her husband to the property were made after the death of Mrs. Gadbois and that the plaintiff after her mother's death continued to occupy the property under a claim of ownership. Both of these facts were disputed upon the evidence and no addition of the finding is permissible by which the position of the plaintiff would be materially advantaged.
The claim of the plaintiff, as stated in the complaint, is that she might by parol evidence show that the conveyance was made to the defendant upon an agreement that the land would be held by him in trust for her sole benefit, and the question so presented is whether, where a deed of the fee of land is made, it may be charged with a trust resting in parol. The original statute of frauds as enacted in England contained an express provision that all declarations or creations of trust in land should be manifested or proved by some writing. 3 Pomeroy, Equity Jurisprudence, 4th Ed., § 1006. That provision was omitted from our statute of frauds, but nevertheless it is a part of our common law from the earliest days that an express trust in real estate may not be proved by parol. Dean v. Dean, 6 Conn. 285, 288; Hayden v. Denslow, 27 Conn. 335, 341; Brown v. Brown, 66 Conn. 493, 499, 34 A. 490; Wilson v. Warner, 84 Conn. 560, 563, 80 A. 718. And this was held to be so in one case although counsel expressly called the court's attention to the omission of the provision concerning trusts from our statute. Todd v. Munson, 53 Conn. 579, 589, 4 A. 99. The plaintiff cannot then prevail unless there are circumstances which make that rule inapplicable, and we necessarily approach that question upon the same basis as though the creation of an express trust was included within the terms of our statute of frauds.
We may narrow our discussion considerably if we keep in mind the distinction between cases where land is devised upon an oral promise by the devisee to convey it to another or the like and those where the land is conveyed inter vivos upon a similar promise, for there is far stronger authority in the former than in the latter situation for giving effect to the parol trust. Restatement Trusts, vol. 1, §§ 45, 55; 3 Bogert, Trusts & Trustees, §§ 495, 499. One of the cases principally relied upon by the plaintiff, Dowd v. Tucker, 41 Conn. 197, affords no precedent for her claim, because it falls within the former class. The principle applicable in such cases extends to conveyances inter vivos made in contemplation of death. Restatement, Trusts, vol. 1, § 45. And that was the situation in Fisk's Appeal, 81 Conn. 433, 71 A. 559. It is true that, in that case, the land in question was located in another state and we held that the law of that state determined whether or not an enforceable trust was created. But that question having been answered in the affirmative, we then considered whether the trust might be proved under our statute of frauds in the absence of any allegation of actual fraud, and we held that it could, ...
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