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As to the Effect of the Requirements of the Statute of Frauds on Declarations or Creations of Trusts of Lands. — (From Prof. Ames’ Lectures.) — By the seventh section of the Statute of Frauds all declarations or creations of trusts of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party declaring such trusts.

Three views have been advanced as to the effect of the statute in requiring a writing:—First.[1] That the statute has introduced a new formality requisite to the validity of such a trust or contract. This view is untenable, since it would bar a subsequent memorandum. Second.[2] That the statute introduces a rule of evidence. This view has been countenanced by many writers, but is open to objection, since by it those cases are wrong which hold that, under the seventeenth section of the statute, the memorandum must exist at the time of the bringing of the suit; and the fact that the statute must be pleaded affirmatively, seems inconsistent with this view. Third.[3] That the statute has changed the procedure, giving a defence to the party to be charged. The effect of this view is, that if there are the common law requisites of a trust, there is a valid trust, though, if of lands, it is not enforceable unless there is a proper memorandum.[4]

Under this view, Gardner v. Rowe[5] was correctly decided. It appeared in that case that one Wilkinson, shortly before his bankruptcy, made a transfer of a lease by an indenture reciting that the property had originally been assigned to him upon trust for the transferee. It was held that the transfer could not be set aside by Wilkinson’s creditors, the jury having found that the original conveyance to him was in fact upon trust.[6]

On the same principle, if an oral contract to sell land is made before the marriage of the grantor, and a conveyance in accordance with the contract is made after the marriage, his wife has no dower in the premises.[7] Again, suppose that A agrees orally to conveg land to B, and, later, agrees in writing to convey the same land to C. He then conveys to B, who has notice of the written contract with C. B is entitled to hold the land.[8]

In Hutchinson v. Tindal[9] the complainant claimed the land in question by a title superior to that of the defendant. The defence was

  1. Smith on Contracts, p. 117; Marsh v. Hyde, 3 Gray, 331, 333.
  2. Browne on Statute of Frauds, § 115, and note a.
  3. “The Effect of the Seventeenth Section of the English Statute of Frauds.” 9 Am. Law Rev. 454.
  4. In Wheeling Ins. Co. v. Morrison, 11 Leigh (Va.), 354, at 365, the Court says: “A parol contract is not void by the Statute of Frauds, though its obligation may be repelled by the party sought to be bound by it. The protection is introduced for his benefit by the statute, and may of course, be renounced by him. If he is willing to abide by it; if disdaining the mala fides of breaking his plighted faith, merely because the ceremonies of the law have been neglected, he recognises the contract and confesses its obligations, shall it not be enforced? Let the unvarying course of equity cases answer the question. How can it be objected by a third person, that the contract which the party himself acknowledges and claims to be valid and binding upon him is not to be so considered? The pretension I conceive to be utterly without foundation.”
  5. 3 Simon & Stuart, 346; Ames’ “Cases on Trusts,” 187.
  6. Patton v. Chamberlain, 44 Mich. 5; Jamison v. Miller, 27 N.J. Eq. 586; Siemon v. Schurck, 29 N.Y. 598; Cramer v. Blood, 48 N.Y. 684; Powell v. Ivey, 88 N.C. 256; Hyde v. Chapman, 33 Wisc. 391; Sackett v. Spencer, 65 Pa. 89; Ocean Nat. Bank v. Hodges, 9 Hun. 161; Hays v. Roger, 102 Ind. 524, accord. But see Smith v. Lane, 3 Pick. 205; Holmes v. Winchester, 135 Mass. 299. Compare Bancroft v. Curtis, 108 Mass. 47.
  7. Oldham v. Sale, 1 B. Monr. 76.
  8. Dawson v. Ellis, 1 Jacob & Walker, 524; Clark’s admr. v. Ruck, 7 B. Monr. 583.
  9. 2 Green, Chan. 357; Ames’ “Cases on Trusts,” 194.