| Volume 200, Volume 2, Page 132 View pdf image (33K) |
 |
|
|
 |
|
|
132 HIGH COURT OF CHANCERY. and that the true design of the parties has been frustrated by fraud or mistake; and as the averments of the bill and the admis- sibility of the evidence of fraud or mistake—if there be any such evidence—are excepted to, because such averments are not made, I do not see how it is possible the complainant could have a decree, even if the other defences should be insufficient. The case made by the bill, is, that the defendants, having made the contract alleged, and being reimbursed from the rents and profits, they are, with respect to the purchase money received by them from West, to be regarded as trustees for the heirs of Gibbons. There is no pretence, however, that they were, in fact, reimbursed in the way alleged, and the claim now urged in the argument, is, not that they are liable for the whole sum received from West, but for the difference between that sum and the money paid by them, as sureties of Gibbons. The trust here set up, is not a resulting trust, implied by law from the presumed intention of the parties, and the justice of the case, as when an estate is purchased in the name of one person, and the consideration money is paid at the time by an- other, when. a trust results in favor of the latter, which being excepted from the operation of the statute of frauds, may be proved by parol. There is, in this case, not only no proof of the payment of the consideration money at the time, by Gib- bons, which is essential to the creation of such a trust, 4 Kent Corn, 305, but he never, in fact, paid the money at any time, the repayment to the defendant, according to the proof, being derived from the sale by them to West. If, therefore, there was a trust at all, it was not a resulting one implied by law, but a trust founded upon the agreement of the parties, and if so, then it is indispensable that it should be manifested and proved by some writing, signed by the party creating it. The trust need not be created, but must be proved by writing, and there being no such evidence in this case, this court could not pass a decree founded upon the idea of its ex- istence. There is, however, it seems to me, another defence which is perfectly insuperable. |
| |||
|
| ||||
|
| ||||
Please view image to verify text. To report an error, please contact us.
Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 132 View pdf image (33K) |
|
Tell Us What You Think About the Maryland State Archives Website!
|
An Archives of Maryland electronic publication.
For information contact
mdlegal@mdarchives.state.md.us.
Maryland State Archives