case at bar there is no attempt at explanation, unless it can be said that plaintiffs thought the defendant, Ann McConaughey, had ten years prior to the bringing of this suit in pursuance of her promise, placed upon record a deed preserving the rights of the plaintiff.

It was certainly the duty of plaintiffs if such promise was made on the part of Ann McConaughey to place such deed upon record to know that it was done as promised. It is not alleged that such deed was executed or delivered, and nothing claimed but a mere verbal promise on the part of Ann, that she would have such a deed recorded in favor of plaintiff.

Plaintiff was guilty of gross laches and makes no explanation to entitle her to relief. There is no error in the decree and the same is affirmed.

POFFENBARGER, PRESIDENT, (concurring):

Affirmed.

The bill alleges a conveyance by the plaintiffs and other heirs to Ann McConaughey of certain real estate upon the understanding and agreement that she should immediately execute to the grantors severally deeds, re-conveying to them certain portions of the land so conveyed to her, reserving to herself life estates in the several tracts so to be reconveyed, and that the particular tract to be conveyed to the plaintiffs was described and identified and a deed for the conveyance thereof to them prepared for execution by the said Ann McConaughey. The conveyance to her was a step in the performance of an antecedent agreement for the partition of real estate among the grantors, subject to a life estate therein to the grantee. Ann McConaughey, under this agreement, was to act as a sort of conduit or agency for the excharge of titles in affecting partition, and the titles were to pass in and out of her instantaneously. It was upon this agreement that the conveyances were made to her. The bill does not allege that she took the land conveyed to her upon a trust for the grantors. It does not say she agreed to hold the lands for them. It does not attempt to set up an express parol trust in contradiction of the deed. It attempts to allege that she committed a fraud upon the grantors in refusing to perform a contract upon the faith of which the conveyances were made to her. The facts alleged in the bill and proposed to be established by parol evidence, if they were sufficiently alleged, constitute what, in law, is termed a con

structive trust, a trust springing out of a fraud, and to such a trust the statute of frauds does not apply. The case is, therefore, not within the third point of the syllabus in Troll v. Carter, 15 W. Va. 567, but falls within the exception to the statute of frauds. mentioned in points of the syllabus of that case, which says, among other things: "If a grantee in a deed has procured it by fraud, he will be held by a court of equity to be a trustee of the real owner."

This is a principle almost as old as the Statute of Frauds it-self. At an early day the courts established the doctrine that a statute which had been enacted for the purpose of preventing and suppressing frauds and perjuries could not be allowed to become itself an instrumentality or engine for the perpetration of fraud. "A second well-settled and even common form of trust ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like, -and having thus fraudulently obtained the title, he retains, uses, and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his: engagement." 2 Pom. Eq. Jur. sec. 1055.

"The fraud against which equity will relieve, notwithstanding the statute, is not the mere moral wrong of repudiating a contract actually entered into, which, by reason of the statute, a party is not bound to perform for want of its being in writing. This was early laid down by Lord Macclesfield, Chancellor, in a case arising upon a promise of a defendant, about to marry, that his wife should enjoy all her own estate, to her separate use after the marriage, which promise, as one made 'upon consideration of marriage,' could not regularly be enforced. His lordship declared that 'in cases of fraud, equity should relieve, even against the words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly orought in and executed in lieu of the former; in this or such like cases of fraud, equity would relieve; but where there is no

fraud, only relying upon the honor, word, or promise of the defendant, the statute making those promises void, equity will not interfere." Browne on Statute of Frauds, sec. 439.

"Parol evidence is admissible to establish a trust, even against a deed absolute on its face, if it would be a fraud to set up the form of the deed as conclusive. Lord Hardwicke stated that the court adhered to this principle, that the statute of frauds should never be understood to protect fraud, and therefore wherever a -case is infected with fraud, the court will not suffer the statute to protect it.' Lord Thurlow added, that 'the moment you impeach a deed for fraud you must either deny the effect of fraud upon the deed, or you must admit parol evidence to prove it.' If this was not so, the law would be reduced to this absurdity—if a fraud could once succeed in procuring the transaction to be reduced to writing and signed by the parties, it would be protected by the law itself, and there would be no possible means of reaching and correcting the wrong. But in such case the bill must -contain a clear and distinct charge of fraud. Therefore, when ever the bill sets out a clear case of fraud, parol evidence will be admitted to prove it, even if the effect of such evidence is to contradict, vary, altar, or destroy written instruments. The mere refusal of a grantee to execute, or the denial of the existence of an invalid parol trust upon which she promised to hold the property, is not such a fraud as will take the case out of the statute. But where a valuable interest passes to one on the faith of a contract he refuses to perform, equity will compel restitution or give other appropriate relief. In any case if the trust arises from the acts of the parties, and not exclusively from their agre ments, the statute of frauds is not a bar to the proof." Perry on Trusts, sec. 226.

But the bill is defective in this, that it fails to allege or charge that the defendant, Ann McConaughey, fraudulently procured the making of said conveyance to her. It should have charged that she procured the making of said conveyance by falsely and fraudulently representing and promising that she would immediately reconvey a certain portion of the land in accordance with the agreement of partition, and took said conveyance frauduler.tly intending, at the time, not to comply with her said promise to re-convey, and, with the like fraudulent intent, has refused to comply with said promise. Manning v. Pippen, 95 Ala. 537;

Alaniz v. Casenave, 91 Cal. 41; Perry on Trusts, sec. 226. The bill only charges that, after having made this agreement and obtained the conveyance in pursuance thereof, she refused to perform. This is not enough. Mere breach of the agreement does not raise a trust and take the case out of the statute of frauds. Browne on Stat. of Frauds, sec. 94a, 439. The same work, at sec. 441, says: "A simple illustration of the rule that when the Stat. of Frauds has been used as a cover to a fraud, equity will relieve against the fraud, notwithstanding its provisions, is found in a case reported by Viner, and stated by him to have occurred in Lord Nottingham's time, and to have been the first instance. in which any equitable exception to the statute appears. There was a verbal agreement for an absolute conveyance of land, and for a defeasance to be executed by the grantee; but he, having obtained the conveyance, refused to execute the defeasance and relied upon the statute; but his plea was overruled, and he was compelled to execute according to his agreement. Here the attempted fraud consisted not merely in refusing to do what he agreed, but in deceiving the plaintiff out of his property. And the case is analagous to that put by Lord Maccelsfield, as falling within the rule, where one agreement in writing is proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former."

It may be that the facts set up in the bill, if established by evidence, would sustain the charge of fraud. Browne on Statute of Frauds, sec. 94a, 439. But the bill ought to charge fraud in express terms. Nothing is to be considered here but the bill, as the case stands upon the ruling of the court upon the demurrer, and the count say the bill must contain a clear and distinct charge of fraud. Irnham v. Child, 1 Bro. Ch. 94; Portmore v. Morris, 2 Bro. Ch. 219; Forsyth v. Clark, 3 Wend. 637; Gouverneur v. Elmendorf, 5 Johns. Ch. 79; Kennedy v. Kennedy, 2 Ala. 571. In Troll v. Carter, 15 W. Va. 567, 583, JUDGE GREEN directs particular attention to the want of any charge of fraud in the bill or the evidence.

Intent is a necessary element of fraud in such case The agreement may have been made, and the conveyance taken, in good faith and with an honest intention to reconvey, and the fraudulent design of dishonestly retaining the property or disposing of it in violation of the agreement may have been formed

afterwards. This would amount to no more than a breach of the agreement, and the bill alleges nothing inconsistent with such a state of facts. The court cannot assume that there wasfraud in the procurement of the conveyance. It must be alleged as well as proved. It is fraud in acquiring the title, not merely in the retention of it, that raises the trust.

If the evidence, establishing such fraud, were before the court, an amendment could be allowed, but the court cannot say whether an amendment would avail anything or not. Hence, under the rule, the plaintiffs having declined to amend in the court below, the decree of dismissal must be affirmed.

For the foregoing reasons, I concur in the decision, but not in all the reasoning of the opinion prepared by JUDGE MCWHOPTER.

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CHARLESTON.

PACKET COMPANY v. BELLVILLE.

Submitted March 8, 1904. Decided April 1, 1904.

JURISDICTION-Prohibition.

Prohibition will not lie to restrain an inferior court from ex ercising jurisdiction in a particular case, in a class of cases of which such court had jurisdiction. (p. 563.)

JUDGMENT-Limitation.

Although the statute requires that a judgment of a justice shall be entered within twenty-four hours after trial (Sundays excepted) a judgment rendered within such time, but entered after the time thus directed, is not void. (p. 563.)

Where a judgmemnt in an action tried before a justice is rendered and publicly announced by the justice on the day and at the close of the trial, although the clerical work of entering the judgment upon his docket is not performed until a few days thereafter, the statute is substantially complied with. (p. 564.)

JUSTICE-Docket.

After a justice has rendered and publicly announced his judg ment in an action at the close of the trial, the entry thereof upon the justice's docket is purely ministerial, and not judicial. (p. 564.)