In re Henderson

• Decision Date: 16 November 1905
• Citation: 142 F. 568
• Parties: In re HENDERSON. v. HENRIE et al. HENDERSON
• Court: U.S. Court of Appeals — Fourth Circuit

142 F. 568

In re HENDERSON.

HENDERSON v. HENRIE et al.

United States District Court, N.D. West Virginia.

November 16, 1905

V. B Archer, for petitioner.

McCluer & McCluer, for respondents.

DAYTON District Judge.

On July 18, 1905, Jock B. Henderson filed his petition in this cause against James M. Henrie and the Union Trust & Deposit Company, trustee for the bankrupt, in which he alleges that at a sale made by said trustee of the real estate of said bankrupt on May 25, 1905, a tract of 62 acres, comprising three lots, numbered 1, 2, and 3, was sold together to Henrie, and by agreement with Henrie before sale he (Henderson) was to have a certain portion of lot one, and the residue of lots were to be Henrie's; that, when they came to settle with the trustee, Henrie agreed the parcel off lot 1 should be surveyed to determine its quantity, he (Henderson) should pay his proportion of purchase money, and the trustee should convey it to him; that Henrie is now insisting upon conveyance of whole to him, denying his (Henderson's) right to the parcel; that this parcel is of peculiar value to him, because of its relative position to his other lands-- he praying an order restraining conveyance of legal title to Henrie of said parcel and asking enforcement of the verbal agreement in relation thereto. Such restraining order was immediately granted, and the matter referred to Referee Geo. W. Johnson to ascertain and report the facts. The defendant appeared before referee on July 24 1905, and filed a demurrer, a formal plea of the statute of frauds, and his answer to this petition. The answer is substantially a denial of the facts as set forth in the petition. The referee returned his findings of fact and all the evidence, and the matter is now before me for determination.

The statute of frauds enacted by the Legislature of this state constitutes a series of rules which determine and regulate primary rights of property and contract, and therefore are a part of the substantive law of the state, in the construction of which the federal courts will follow the rulings of the court of last resort of the state. The statute of frauds as now contained in chapter 98, Code of West Virginia, 1899, had its origin in the English statute of 29 Car.II, c. 3, which being subsequent to St. 4 Jac. I, was never in force in Virginia. The first enactment of such statute in Virginia was on November 30, 1785, in these words:

'That no action shall be brought whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for longer term than one year, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.'

This old statute, with the addition of the two first clauses relating to liability for credit extended upon representations and the ratification of promises made in infancy, is substantially the statute of the state today.

In the English statute the seventh, eighth, and ninth sections provided that:

'(7) All declarations or creations of trusts, or confidences in any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare the trust, or by his last will in writing, or else they shall be utterly void.

'(8) Provided always that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of like force as the same would have been if this statute had not been made, anything hereinbefore to the contrary notwithstanding.

'(9) All grants or assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect.'

It is vital to observe at the beginning that these three sections of the English statute never were adopted, but wholly omitted in the statute and its various re-enactments in Virginia up to the division of the state, and in West Virginia since such division. The seventh section, the important one in this controversy, has been so omitted only so far as I can discover in the statutes of the states of Texas, North Carolina, Tennessee, Virginia, West Virginia, Connecticut, Delaware, Indiana, Ohio, and in Pennsylvania prior to 1856, when it was there enacted. Therefore authorities from other states than these can hardly be even persuasive, based as they are upon statutory provision which we do not have. Perry on Trusts (4th Ed.) Secs. 78, 79, and notes.

It is an interesting study to follow what may be called the evolution of the doctrine of trust by parol in lands after the passage of the statute of frauds, as shown by the decisions of Virginia and West Virginia. The first case arising was Buck & Brander v. Copland, 2 Call, 218, decided in 1800, and the second was that of Rowton v. Rowton, 1 Hen.& M. 92, decided in 1806. In that case a father had induced his son to return to the home neighborhood, settle and make improvements upon a tract of land, which he declared to him by parol he had willed him and would never take away from him. The son did live upon the land and improve it until his death, when his widow, setting up title in him in fee simple, brought suit to assert her dower therein. This suit was defended by a denial of the verbal agreement and a reliance upon the statute of frauds. The case was argued by Wickham & Call on one side and Randolph upon the other, and all the judges expressed opinions. Judge Tucker held, with the court below, for the widow, because the father 'had betrayed his son into expense in removing to and improving the place; an expense probably little suited to his circumstances, and which he never would have incurred but for his father's proposal and promise. ' And this he held 'takes the case completely out of the operation of the statute of frauds, which certainly was not meant or intended to countenance or encourage fraud in one from whom the contract first moved. ' Judge Roane very positively held:

'In no case which ever occurred before me was the policy and utility of the statute of frauds made more manifest.'

Judge Fleming regarded it as 'a very striking case, evincing the wisdom, propriety, and good policy of the statute of frauds and perjuries, which ought not to be disregarded and overleaped by courts of equity upon such slight and trivial grounds. ' Judge Carrington regarded it as 'a premeditated fraud on an unfortunate woman. She was induced to leave her parents and connections in a distant country, to come hither with her husband, upon a fair prospect that in case of his death she would have at least an establishment for life. But how was she disappointed. The violent hand of the murderer deprived her of her husband, the ruffian hand of a cruel father-in-law ousted her from the land of that husband, and thus she is abandoned to want and distress amongst inhospitable strangers. A greater fraud is seldom perpetrated. ' On the other hand, Judge Lyons thought the suit 'an after-thought of the widow' brought 'to tease and vex old Rowton,' and 'perhaps from private pique or animosity, because she well knew she had no good grounds for the suit,' and he regards the case against her so clear that he has no doubt about it, 'exclusive of the statute of frauds, but should dismiss the claim as groundless and fraudulent. ' Counting the chancellor, who decided the case below, we find an 'even split' in the views of six of these old judges in such positive terms as not to present a hopeful outlook for the establishment of 'peace and harmony' touching this doctrine.

In 1808 the case of Argenbright v. Campbell and Wife, 3 Hen.& M. 144, was decided. In this case John Campbell had promised to James 'that if he married his daughter Rebecca' he should have the land in controversy according to the terms of his will. After the marriage, the son-in-law being informed by the attorney that old John Campbell could revoke or change his will at any time, secured from him a bond setting forth the marriage, the promise of land in consequence, the making of the will, and bound him not to revoke or change said will so far as it related to the disposition so made therein of the land. Afterwards John Campbell sold the land to Argenbright, and thereupon James Campbell and wife brought the suit to recover it. Here an exhaustive consideration was had. Judge Tucker, devoting 26 pages to reason and argument, reached the conclusion that the statute of frauds prevented recovery and 'upon the whole there never was a case less entitled to the favor, support, or countenance of a court of equity. ' To this view Judges Roane and Fleming sharply and pointedly dissented, and it was therefore held that:

'A parol promise by a father to his daughter's husband before the marriage is a sufficient consideration to sustain a written agreement made after the marriage, if such written agreement be otherwise sufficient under the statute of frauds.' The next

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