Taft v. Dimond

• Decision Date: 27 July 1889
• Citation: 16 R.I. 584,18 A. 183
• Parties: TAFT et al. v. DIMOND et al.
• Court: Rhode Island Supreme Court

18 A. 183

16 R.I. 584

TAFT et al.

v. DIMOND et al.

Supreme Court of Rhode Island.

July 27, 1889.

Bill in equity to establish a trust.

William O. Roelker and Rathbone Gardner, for complainants. Charles A. Wilson and Thomas A. Jenckes, for respondents.

DURFEE, C. J. Sarah A. Brayton, in November, A. D. 1882, conveyed certain real estate described in the bill by deed with warrantv in fee-simple to the defendant Frances M. Dimond. She died in March, A. D. 1884. This suit is by her heirs at law. The bill alleges that the deed was without consideration, and was made only for the purpose of vesting the legal estate in Dimond, for the use of the grantor, to enable him the better to manage it in her behalf, and that, from the making of the deed until her death, Dimond collected the rents and income for her, accounting to her for them, and acknowledging that he held the estate as trustee for her; that he has so acknowledged since her decease, but that more recently he denies the trust. The bill prays that he may be decreed to convey the estate to the complainants, as heirs at law of said Sarah, so as to vest it in them according to their interests as such, and for other relief. The answer denies that the conveyance was on the trusts alleged, or without consideration, and alleges that it was for a valuable consideration, and free from any trust for the grantor. In regard to the consideration, the defendant Dimond testified that at the time of the conveyance he held a note against the grantor for money lent, which note he then gave up; that he had assisted her in various ways; and that she said that if there was any of her property left she wanted it to go to him and his wife. He also testified that the rents were paid to her after the conveyance, according to agreement, as she had nothing else to live on; that the estate is taxed for $5,000; that it was, when conveyed, subject to a mortgage for $2,500; and that the deed to him was recorded immediately after it was given. The complainants claim on the ground of an express trust, any trust by implication being inconsistent with the covenant of warranty in the deed. Their claim is within the seventh section of the statute of 29 Car. H. c. 3, known as the "Statute of Frauds and Perjuries,"— that section, though never expressly re-enacted here, being recognized as a part of the law of the state. The statute of frauds and perjuries is one of the statutes which were declared to be in force in this state by the act of 1749. The seventh section enacts that "all declarations or creations of trusts or confidences of any land, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void, and of none effect." The question here, then, is whether the complainants, as heirs at law of Sarah A. Brayton, show in respect of the estate a trust in their favor, manifested and proved by some writing signed by Dimond.

Several witnesses produced by the complainants testify to statements orally made by Dimond, tending to show that he held the estate in trust for Mrs. Brayton. Such testimony is clearly ineffectual under the statute, and cannot be regarded. Several witnesses also testify to oral statements by Dimond, tending to show that after the estate was conveyed to him he reconveyed it to Mrs. Brayton. The complainants contend that this is testimony which entitles them to relief. The trouble with it is that, if it proves what it is claimed to prove, it proves too much; for, if it be true that Dimond reconveyed the estate to Mrs. Brayton, the estate thereupon revested in her, and upon her death descended to the complainants as her heirs at law, so that instead of Dimond's having it as trustee for them, they already have it for themselves. Of course the disappearance of the deed by which Dimond reconveyed, or even its destruction, would not revest the estate in him. Stone v. King, 7 R. I. 358. One of the witnesses for the complainants testifies that Dimond, speaking to the witness in regard to Mrs. Brayton's limited income, said that it all, or nearly all, came from the estate in question; also that she had conveyed the estate to him, to protect it from attachment; and that for her security in case of his death he had made a deed of it to her, which would be found in his safe with his other papers. Dimond, testifying, admits making the statement, but says in explanation that Mrs. Brayton wanted him to see her paternal uncle, and ask him to assist her; that, knowing there was dissatisfaction on account of the conveyance to him, he made a quitclaim deed back to her, without her knowledge, or any intention of reconveying, but only so that he might be able to say that he had made it, to make a better impression; that, instead of going directly to the uncle, he went to the witness, a nephew of said uncle, and a cousin of Mrs. Brayton, for the purpose of sounding him in regard to his chance of success, and in the course of the conversation made the statement, and, that getting no encouragement, he tore up the deed immediately on his return, Mrs. Brayton never knowing anything about it. Could the deed, supposing it to have been thus kept by Dimond among his papers without delivery, be regarded as a declaration of trust? Clearly not, if we accept Dimond's account. Browne, St. Frauds, § 354. But supposing it to have been made as security for Mrs. Brayton in case of his death, could it be so regarded? We think not. It purported to be not the declaration of a trust, but the conveyance of an estate. Doubtless, if...