Trust, Resulting. Frauds, Statute of. A bill in equity to compel the defendant to convey certain land to the plaintiff alleged, that the plaintiff and defendant were brothers and that in pursuance of a plan of their mother to divide her property between them she gave certain other land to the defendant and intended to give this land to the plaintiff, that this land was paid for with money raised by a mortgage on other land then standing in the name of the defendant, that the land in question was conveyed to the defendant, the deed being placed in the possession of the plaintiff, and that the defendant accepted the conveyance with the oral agreement made with his mother and the plaintiff, that whenever requested to do so by his mother he should convey the land to the plaintiff, and that in the meantime he should permit the plaintiff to occupy the land free of rent on paying taxes and for repairs on the house and buildings, that under this agreement the plaintiff entered and occupied the premises openly and exclusively and made expenditures and improvements upon the estate with the knowledge of the defendant, that the mother requested the defendant to convey the land to the plaintiff which he refused to do, and, the mother having died, the plaintiff demanded a conveyance of the land from the defendant. On demurrer held, that the bill could not be sustained; that the facts alleged did not establish a resulting trust, nor any trust, in favor of the plaintiff, and that there was no such performance on the plaintiff's part as to take the case out of the statute of frauds. Semble, that on the facts alleged there might have been no trust in favor of the mother and no consideration for the alleged agreement of the defendant.
MORTON, J.
This is a bill in equity to compel the defendant to convey to the plaintiff certain land in Scituate, and to cancel and discharge any mortgage placed thereon by him. There was a demurrer to the bill as originally filed which was sustained and the bill was thereupon amended. There was also a demurrer to the amended bill, and this too was sustained, and the bill was dismissed. The plaintiff appealed. It is this demurrer which is before us and the ground of it is the statute of frauds, that what is relied on is an oral contract for the conveyance of land.
The plaintiff contends that there was a resulting trust in his favor and that therefore the statute of frauds does not apply. But we see no ground on which such a contention can be sustained. No part of the consideration for the conveyance moved from or was furnished by the plaintiff. The most that can be said is that the defendant orally agreed with the plaintiff and his mother at the time of the conveyance that as part of the plan which the latter had formed for dividing her property amongst her children, of whom the defendant was one, at her death, he would take a deed of the premises and did so with the understanding that he would convey the property to the plaintiff when his mother requested, and that in the meantime the plaintiff should be permitted to occupy on payment of the taxes and repairs, and that the plaintiff entered and took possession and had occupied openly and exclusively and had made expenditures and improvements, but that the defendant had refused to convey the property to the plaintiff when requested by his mother. It is manifest that this falls far short of establishing a resulting trust or any trust in the plaintiff's favor. Indeed it is doubtful whether upon the allegations of the bill there was a trust in the mother's favor or any consideration for the alleged agreement on the part of the defendant. The money, with which the premises in question were paid for, was the proceeds of a mortgage placed by the defendant on property which the mother had conveyed to him several years before as a part of the same plan of division already referred to, and in which, therefore, it would seem she had and could have no interest, by way of resulting trust or otherwise, that furnished or constituted the consideration for the conveyance to the defendant and there is no allegation that the money thus obtained was lent to the mother and used by her in paying for the land in question. Fitzgerald v. Fitzgerald, 168 Mass. 488. Campbell v. Brown, 129 Mass. 23. Whitten v. Whitten, 3 Cush. 191. But if we assume that there was a good and sufficient consideration, and that the agreement was sufficiently definite, we are of opinion that there has been no such part performance as to take it out of the statute and to entitle the plaintiff to a conveyance. The only allegation is that the plaintiff entered and took possession under the agreement and has had possession openly and exclusively and has made expenditures and profitable improvements with the knowledge of the defendant, and has also it may be inferred paid the taxes. This is plainly not sufficient. Burns v. Daggett, 141 Mass. 368. Indeed the plaintiff does not contend that it was and we only mention it to show that it has not been overlooked.
Decree affirmed.