TOURTILLOTTE v. TOURTILLOTTE

Trust, Constructive. Frauds, Statute of. Burial Lot. Equity Pleading and Practice, Answer.

In a suit in equity against one brother in a family by all of his nine brothers and sisters, in which the plaintiffs sought to have the defendant declared trustee for himself and them of a burial lot, which he had purchased and the title to which he had taken in his own name, the following facts appeared: In 1891 the plaintiffs and the defendant and their father were living together and jointly contributing to the family support. In that year a sister died, and, the family then being without a burial lot and the defendant not at that time having contributed his full share to the family expenses, it was agreed among them that the defendant should pay for a lot which they all selected and that the deed should be made to the father. The defendant paid for the lot, but the deed conveyed the lot to him individually. The making of the deed to the defendant was accidental, and the defendant acted in good faith in the matter. The deed was kept unconcealed in a desk used by and equally accessible to all members of the family. The father never learned of the state of the title, and died in 1895. The plaintiffs learned of it in 1896 or 1897 and then questioned the defendant, who told them that it was all right, that it did not matter, and used other similar expressions which they regarded as amounting to an oral promise to hold the lot for their benefit as well as for his own. In the meantime the body of the mother had been moved from a former home of the family and interred in the lot and another sister had died and had been buried there, as well as the father; and from an annuity provided by insurance of the sister a family monument had been erected upon the lot. In 1906, dissensions having arisen between the defendant and the plaintiffs, he asserted an absolute right in the lot, and the plaintiffs at once brought this suit. Held, that, there being an entire absence of a written memorandum of a trust, such as is required by R.L.c. 74, § 1, cl. 4, and by R.L.c. 147, § 1, the suit could not be maintained.

Where a bill in equity, in which the plaintiffs seek to have the defendant, their brother, declared trustee for himself and them of a burial lot, which was purchased by the defendant and the title to which he took in his own name, avers merely that before the purchase the plaintiffs and the defendant orally agreed that the title should be taken in the name of their father, who had died after the conveyance to the defendant, and does not aver any other promise or contract of the defendant with regard to the matter, and relies only upon oral declarations with regard thereto made by the defendant after the purchase, it is not necessary for the defendant, in order to rely on the provisions of R.L.c. 74, § 1, cl. 4, and of R.L.c. 147, § 1, requiring a memorandum in writing to make such a promise or declaration enforceable, to allege such defense in his answer.

SHELDON, J.

All the members of the Tourtillotte family, including both the plaintiffs and the defendant, intended that the title to this burial lot should be taken in the name of the father, the children no doubt expecting to inherit it as heirs at law, in which case they would have held it under the provisions of R.L.c. 78, § 26. By a mistake, the particulars of which do not appear, the deed was taken in the name of the defendant. This was in July, 1891. The father died in March, 1895. The deed had been kept unconcealed in a desk used by and equally accessible to all the members of the family; but it did not appear that the father ever learned the real state of the title, or that the plaintiffs knew what it was until a year or two after their father's death, that is, in 1896 or 1897. They then questioned the defendant and he told them that it was all right, that it did not matter, with other similar expressions, which they undoubtedly regarded as amounting to an oral promise to hold the lot for their benefit as well as his own. But in 1906 he notified the plaintiffs that he claimed an absolute and unconditional title in the lot. Thereupon they brought this suit.

Upon these facts, it seems to the majority of the court to be clear under our decisions that the bill cannot be maintained. The plaintiffs relied upon mere oral declarations of the defendant. R.L.c. 147, § 1. Much as it is to be regretted that he now chooses to make his word of no value, equity cannot enforce it against him. Parsons v. Phelan, 134 Mass. 109. Collins v. Sullivan, 135 Mass. 461. Emerson v. Galloupe, 158 Mass. 146. Bourke v. Callanan, 160 Mass. 195. Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273. The argument that the enforcement of this general rule works a hardship and enables the defendant to do an injustice to the plaintiffs in this case was stated and answered by Holmes, J., in Bourke v. Callanan, ubi supra.

It does not matter that the provisions of R.L.c. 74, § 1, cl. 4, or c. 147, § 1, were not set up in the answer. The bill did not aver any contract or promise by the defendant, except one which was alleged to have been made before the purchase of the lot, and this was not proved. Apart from this, the bill relies only upon oral declarations of the defendant. The plaintiffs do not ask for a conveyance. There was no occasion to plead the statute of frauds. It was not pleaded in Collins v. Sullivan, ubi supra.

We are aware that our decisions above cited have been criticised, and that there are cases in other jurisdictions which tend to sustain the claim of the plaintiffs. And it is true that equity will often raise a constructive trust to defeat a fraud. Moore v. Crawford, 130 U.S. 122, 128. Stark v. Starrs, 6 Wall. 402, 409. Meader v. Norton, 11 Wall. 442, 458. Sanford v. Sanford, 139 U.S. 642, 646. Ryan v. Dox, 34 N.Y. 307. Reitz v. Reitz, 80 N.Y. 538, 540. Matthews v. Light, 32 Maine, 305. Church v. Sterling, 16 Conn. 388. Dodd v. Wakeman, 11 C.E. Green, 484. Laing v. McKee, 13 Mich. 124. Rollins v. Mitchell, 52 Minn. 41. Martin v. Martin, 16 B. Mon. 8. Cannon v. Gilmer, 135 Ala. 302. Alaniz v. Casenave, 91 Cal. 41. Lees v. Nuttall, 1 Russ. M. 53, and on appeal, 2 Myl. K. 819. Taylor v. Salmon, 4 Myl. Cr. 134. Rolfe v. Gregory, 4 DeG., J. S. 576, 579. But most of these cases come under the rule of Tate v. Williamson, L.R. 2 Ch. 55, 61, (see Hill v. Hall, 191 Mass. 253, 263,) or under that stated by Brayton, C.J., in Jenckes v. Cook, 9 R.I. 520, 525. So far as any of them go beyond the rules laid down in our own decisions already referred to, we must abide by the latter.

In the case at bar, the deed by a mistake was made to run to the defendant instead of his father. If we assume (what has not been found) that this was a mutual mistake of the parties to the deed of such a character and so clearly proved that it might have been corrected in equity at the suit of the father (Page v. Higgins, 150 Mass. 27; Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290), and that it was not acquiesced in by the father in his lifetime, it yet remains true that the plaintiffs, when in 1896 or 1897 they discovered the mistake, were content to leave it uncorrected, and to rely wholly on the oral representations of their brother. The case does not come within the rules of Goode v. Riley, 153 Mass. 585; Canedy v. Marcy, 13 Gray, 373; Mattingly v. Speak, 4 Bush, 316, or Bohanan v. Bohanan, 3 Ill. App. 502. And see Dougan v. Bemis, 95 Minn. 220, and the note to that case in 5 Am. Eng. Ann. Cas. 255.

The defendant's counsel at the argument in this court consented that the plaintiffs might remove from the lot the family monument placed upon it by one of them. The decree appealed from will be modified so as to allow them to do this, and so modified will be

Affirmed.