Kennerson v. Nash
| Decision Date | 09 March 1911 |
| Citation | 94 N.E. 475,208 Mass. 393 |
| Parties | KENNERSON v. NASH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. S. Hayes and A. G. Sleeper, for appellant.
E. R Anderson, G. A. Sweetser, and T. L. Wiles, for appellee.
When A., who has agreed by word of mouth to buy land as an agent for B., betrays his trust and buys it in his own name for his own account, the statute of frauds prevents B. maintaining a bill in equity to have A. decreed to hold the land for him B. That is settled, at least in this commonwealth. See Tourtillotte v. Tourtillotte, 205 Mass. 547, 91 N.E 909, where the earlier cases are collected. In addition to those there cited see Hall v. First National Bank, 173 Mass. 16, 53 N.E. 154, 44 L. R. A. 319, 73 Am. St. Rep 255. The reasons of this rule and the effect of it are stated with accuracy in Bourke v. Callanan, 160 Mass. 195, 196, 197, 35 N.E. 460.
That in effect has been conceded by the plaintiff in the case at bar, and he has sought to escape from it by making out a resulting trust on the ground that in the case at bar the purchase money was paid by him. But the purchase money was not all paid by him. The purchase money was one thousand dollars in cash paid on the day of the foreclosure sale (August 19th), and a mortgage back for $28,000 given on the day when the defendant received the deed pursuant to the foreclosure sale (August 24th). The defendant had agreed to lend the plaintiff the $1,000, and for that reason that sum in legal contemplation might be held to be his money within the doctrine of Kendall v. Mann, 11 Allen, 15, acted upon in McDonough v. O'Niel, 113 Mass. 92. But the mortgage back was made by the defendant, and on the master's report it must be taken that the defendant alone signed the mortgage note. Where the purchase money is made up in part of cash furnished by the plaintiff (but not for an aliquot share) and in part of a mortgage back made by the defendant, there is no resulting trust in favor of the plaintiff. That was decided in Dudley v. Dudley, 176 Mass. 34, 56 N.E. 1011, and Olcott v. Bynum, 17 Wall. 44, 21 L.Ed. 570. It was conceded in McGowan v. McGowan, 14 Gray, 119, 74 Am. Dec. 668; and it was one of the grounds of the decision in Bourke v. Callanan, 160 Mass. 195, 35 N.E. 460.
The facts in McDonough v. O'Niel, 113 Mass. 92, were quite different from those in the case at bar and from those in the cases cited above of Dudley v. Dudley, McGowan v McGowan, Olcott v. Bynum and Bourke v. Callanan. In the case of McDonough v. O'Niel, the purchase price was $3,000. Of this $1,500 was paid in cash lent to the plaintiff's testator, and the other $1,500 was paid by a mortgage back made by the defendant to take the place of a mortgage for that amount which was on the land when it was bought by the plaintiff. It is stated in the opinion in McDonough v. O'Niel that Clements, who held the previous mortgage for $1,500, 'testified that before the purchase the defendant came to see if that mortgage could lie on the property, and told him that he was going to buy the land for the testator, and was told by the mortgagee that he must give a new mortgage, as he afterwards did, in discharge of the old one.' It is because of this fact that it was said in the subsequent cases of Bourke v....
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