59 Mass. 90 - Walker v. Locke — 59 Mass. 90

Caroline L. Walker & another vs. Charles B. Locke & another. A bill in equity to enforce a trust, not arising by implication of law, respecting an interest in land, cannot be maintained, unless such trust is evidenced by an agreement in writing; and if it appear on the face of the bill, that the trust rests in paroi, the defence of the statute of frauds may be taken advantage of on demurrer. This was a bill in equity, in which the plaintiffs alleged, that, on the 27th of July, 1847, they were seized in fee, with another person since deceased, of whom they were the legal representatives, of a certain real estate, in Warren street, in Boston ; that the same had been and then was incumbered with mortgages and attachments to secure debts due from the plaintiffs to the amount of $3000 ; that being desirous to obtain money to pay these debts by means of a mortgage of the estate, they applied to the defendant, Locke, a broker, for that nurpose, on or about the 4th of May, 1847, and were informed by him, that he could obtain the money, provided they would pay a large sum for the use thereof, but that he could not procure it upon their signature, and they must give him a power of attorney to transact the business for them; that the said Locke, on the 27th day of July aforesaid, came to the plaintiffs, and informed them, that their creditors were attaching the real estate in question, and that the plaintiffs must convey it to some person, in trust for them, or it would be so covered up by attachments, that it would be impossible to raise money upon the estate by mortgage, and there would be a sale of the same within twenty-four hours; that the said Locke, thereupon, presented the plaintiffs with, a deed of the estate, for them to execute and deliver to him, informing them that it was a mere matter of form, to enable him to obtain the money and pay off the mortgages and attachments, and that he would raise the money and pay the same, and then reconvey the estate to the plaintiffs; that the plaintiffs being wholly ignorant of their rights and of the nature of the deed, and placing con fidence in Locke, and being greatly alarmed lest the estate should be sold, executed and delivered the deed aforesaid to Locke, being a quitclaim deed of the premises, for a consideration named therein, but in fact without any other or different consideration, than to enable the said Locke to raise money for the purpose aforesaid; that the estate was then of the value of $8000, and the annual rent thereof $450 ; that the said Locke procured the sum of $4000 on a mortgage of the estate, and paid off the debts secured by the mortgages and attachments thereon, and gave his note to the plaintiffs for $500, being the amount of the loan remaining in his hands, after paying the debts, and satisfying himself for doing the business; that on the 2d of March, 1848, the defendant Locke executed and delivered a quitclaim deed of the estate to the other defendant, Remick, for the consideration, as expressed therein, of fifteen hundred dollars, but as the plaintiffs had been informed and believed, for the sole purpose of defrauding them, and without any consideration whatever, Remick well knowing that Locke had no interest in the estate, but held the same in trust for the plaintiffs; that the plaintiffs had frequently applied to the defendants, and requested them to accept compensation for any trouble or expense that Locke might have been at, on their account, in the premises, and an indemnity for any liability which he might be under, on account of the money raised by him on mortgage as aforesaid, and to reconvey the estate to the plaintiffs; and that the defendants absolutely refused and still refuse to comply with such reasonable request. The prayer of the bill was for a discovery; that the deeds from the plaintiffs to Locke and from Locke to Kemick might be delivered up; that a reconveyance of the estate by the defendants to the plaintiffs might be decreed; and for such further relief in the premises as the nature of the case might require. The defendants demurred to the bill for want of jurisdiction. H. C. Hutchins, for the defendants. W. Richardson, for the plaintiffs. — Wilde, J. (majority) Wilde, J. Upon the facts stated in the bill, the question is, whether the plaintiffs are in equity entitled to the relief prayed for. The bill states, that the plaintiffs were induced by the fraudulent representations of Locke, one of the defendants, to convey to him the real estate described in the bill, for the purpose of raising money to pay off certain mortgages and attachments thereon, and then to reconvey the estate to the plaintiffs. The only material allegation- stated is, that Locke informed the plaintiffs, that “ the deed was a mere matter of form, to enable him to obtain the money and pay off the attachments and mortgages, and that he would raise the money and pay the same, and then reconvey the estate to the plaintiffs.” The manifest import of this allegation is, that it was a mere matter of conversation, and not an agreement in writing. Nor is there any averment in the charging part of the bill, from which it can be inferred that the defendant Locke ever agreed in writing to hold the estate in trust; but if there were any such averment, it would not aid a defective averment in the stating part of the bill. The inference from the 'whole bill is, that there was no agreement in writing, or declaration of trust, by Locke, to hold the estate in trust; and any paroi agreement or declaration to that effect is void by the statute of frauds. And this appearing on the face of the bill, it may be taken advantage of by demurrer; and as the plaintiffs are not entitled to relief, the demurrer to the whole bill is well founded; for the discovery cannot be demanded in aid of a suit at law, as in such a bill it is necessary to aver that a suit at law has been commenced, or is intended to be commenced, in support of which the discovery that is sought for is mate rial. And this bill contains no such averment. Bill dismissed.