Sample v. Romine
| Decision Date | 21 September 1942 |
| Docket Number | 34945. |
| Citation | 9 So.2d 643,193 Miss. 706 |
| Court | Mississippi Supreme Court |
| Parties | Clark SAMPLE et al. v. J. H. ROMINE. |
In Banc.
Appeal from Chancery Court, Yazoo County; M. B. Montgomery Chancellor.
On suggestion of error.
Suggestion of error overruled. See 8 So.2d 257, and 10 So.2d 346.
Saye & Saye, of Longview, Tex., and Bridgforth & Love, of Yazoo City, for appellants.
Henry & Barbour, of Yazoo City, Watkins & Eager, of Jackson, and Walter L. Brown, of El Dorado, Ark., for appellee.
The other members of the Court are of opinion that the Suggestion of Error is without merit. It is therefore overruled. The writer is of the opinion that it ought to be sustained and that the question involved is so important that he ought to state his reasons therefor in a dissenting opinion.
The applicable statute of frauds is embodied in Chapter 64 of the Code of 1930, Section 3348 of which provides in part that "all declarations or creations of trusts or confidence of or in any land shall be made and manifested by writing signed by the party who declares or creates such trust, or by his last will, in writing, or else they shall be utterly void", but that this requirement shall not apply to constructive trusts. This statute is substantially the same as the seventh section of the English statute of frauds. Appellee sued for one-third of all sums received from the mineral rights and in addition prayed that the Court decree that he was the owner of a one-third interest in such rights in the land and that a Commissioner be appointed by the Court to execute a deed conveying to him such one-third interest. This is not a suit, therefore, by Romine for compensation for his services, but a suit for an interest in land and the mineral receipts therefrom. The question is whether under the undisputed facts this is an express trust or a constructive trust, if the former, of course, it had to be in writing, if the latter it did not. It seems clear that it was the former. Nothing was left unagreed to and the principal part of the contract rested in parole. A constructive trust is one on which some of the essential facts were not agreed to but results from relationship and acts of the parties.
A verbal agreement made upon the execution of a deed to land that the grantee hold the property in trust for the benefit of the grantor to prevent the latter's improvidence is within the statute. Horne v. Higgins, 76 Miss. 813 25 So. 489; Miazza v. Yerger, 53 Miss. 135; Lewis v. Williams, 186 Miss. 701, 191 So. 479. An oral contract by the father to convey land to his daughter in return for her care of him during his lifetime comes within the statute and is void, but the daughter could recover a fair value for her services rendered thereunder. Stephens v. Duckworth, 188 Miss. 626, 196 So. 219.
To illustrate: A employs B to buy a quarter section of land for him and to take the...
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