Murphy v. Hubert

• Citation: 7 Pa. 420
• Parties: MURPHY <I>v.</I> HUBERT.
• Decision Date: 27 March 1847
• Court: Pennsylvania Supreme Court

7 Pa. 420

MURPHY v. HUBERT.

Supreme Court of Pennsylvania.

March 16, 1847.

March 27, 1847.

March 16.

IN error from the District Court of Philadelphia.

Hirst, for plaintiff in error, argued that so much of the British statute as required trusts to be evidenced by writing, was not in force, but they might be proved as at common law by parol, and that the uncertainty of the evidence was not sufficient to withdraw the

case from the jury. He cited, Thompson v. White, 1 Dall. 427; Miller v. Pearce, 6 Watts & Serg. 97; Esbach v. Zimmerman, 2 Barr, 313; Baker v. Williamson, 4 Barr, 463; Stewart v. Brown, 2 Serg. & Rawle, 461; Mitchell v. Kintzer, 5 Barr, 217; Syler v. Eckhart, 1 Binn. 378; Miller v. Hower, 2 Rawle, 55; Billington v. Welsh, 5 Binn. 129; Clark v. Vankirk, 14 Serg & Rawle, 355; Hoge v. Hoge, 1 Watts, 213; Lewin on Trusts, 89; Sheriff v. Neal, 6 Watts, 540; Gaullaher v. Gaullaher, 5 Watts, 200; Peebles v. Reading, 8 Serg. & Rawle, 484.

Zantzinger and Clarkson, contrà, made two points.—1st. That the British statute was virtually in force under the decisions of the court, which refused to recognise a trust not proved by writing, without fraud, or the payment of the price by the alleged cestui que trust. 2d. That if a parol trust could be established against a formal conveyance, it must be by clear and certain evidence; 8 Serg. & Rawle, 492. That in this case, the varying statements rendered it impossible to say what the trust was, or for whom, or whether there was some consideration which had been refunded. On the first point, they cited, Church v. Church, 4 Yeates, 280; Gregory's Lessee v. Setter, 1 Dall. 193; German v. Gabbald, 3 Binn. 302; Wallace v. Duffield, 2 Serg. & Rawle, 521; Peebles v. Reading, 8 Serg. & Rawle, 492; Wither's Appeal, 14 Serg. & Rawle, 185; 1 Johns. Ch. Reps. 582; Bottsford v. Burr, 2 Johns. C. Rep. 409; Gibblehouse v. Stong, 3 Rawle, 439; Kisler v. Kisler, 2 Watts, 323; Sidle v. Walters, 5 Watts, 389; Robertson v. Robertson, 9 Watts, 32; Leshey v. Gardner, 3 Watts & Serg. 314; Jackman v. Ringland, 4 Watts & Serg. 149; Sample v. Coulson, 9 Watts & Serg. 62.

March 27. GIBSON, C. J.

A careful examination of the cases in our reports has led me to nothing but a few loose dicta which could give colour to the doctrine that a parol declaration of trust is within our statutes of frauds. The principal one is in Wither's Appeal, where Mr. Justice Duncan said, that though the seventh section of the English statute is omitted in our act, the substance of it is comprehended in our first section, which declares that no interest in land, "whether in law or equity," shall pass by parol; and that no trusts, but those that result by implication of law, are within the exceptions to it: yet he had, in Peebles v. Reading, quoted, with approbation, the remark of Chief Justice Tilghman, in German v. Gabbald, that the provisions of our act apply rather to legal than to equitable estates; and he laid much stress on the omission of the seventh section of the English statute, which, he justly remarked, could not be imputed to accident. His dicta in the two cases — for in neither was a decision of the point called for — cannot be reconciled. That the first three sections of the English statute, forming by consolidation the first in our act, are applicable exclusively to legal estates, is demonstrable by the fact, that trusts were specifically provided for in the omitted section, though these sections, like our own section, contain the clause, "in law or equity," on which the opposite hypothesis is founded. The obvious design of it was, to prevent an equitable estate from being transferred, and the design of the seventh section was to prevent a trust estate from being created by parol. To be convinced of this, it is...