Lantry v. Lantry.

LAWRENCE, J. The courts have gone a long way toward repealing the statute of frauds, but we think not far enough to sustain the decree rendered in this case.

The facts are very brief. The appellee, Bernard M. Lantry, was the son of John Lantry, deceased, by a divorced wife. He was born soon after the divorce, and never lived with his father. In the fall of 1859 John Lantry, anticipating his own speedy decease, conveyed tc his brother, Thomas Lantry, his farm of eighty acres, by an absolute deed. Thomas Lantry swears there was no money con sideration paid for the deed, but his brother expected to be taken care of, as he was ill, and told Thomas, in reply to a question whether the boy was not to have something, to do as he pleased. "If the boy is worthy, give him what you please; if not, never look at him." Thomas has given appellee $320 with which to purchase a team. On the other hand, various witnesses testify that John Lantry, before he went from La Salle county, where he resided, to his brother's house at Chicago, expressed the intention of deeding the farm for the benefit of the boy, and applied to one or two of them to take the trust. Some admissions, rather general in their character, are also proven against Thomas Lantry.

The fourth section of the statute of frauds is as follows:

"All declarations or creations of trusts or confidences, of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of no effect; provided, that resulting trusts, or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol."

It is not pretended that the alleged trust in this case is a resulting trust, or one created "by construction, implication or operation of law." It is clearly within the language of the act, and is not denied to be so; but it is said this is one of those cases in which courts decline to apply the statute, because to do so would protect a fraud. There is a large number of cases of this character. Those which most nearly approach the case at bar are cited in Hill on Trustees, p. 151, notes (3d Am. ed.), and in 1 Story's Equity Jurisprudence, section 256 (8th ed.) The same cases are cited by both authors, and also by the counsel for appellee. The text in Hill, in support of which the cases are referred to, is as follows: "Where a person, by means of his promises, or otherwise by his general con

Lantry v. Lantry.

duct, prevents the execution of a deed or will in favor of a third party, with a view to his own benefit, that is clearly within the first head of frauds, as distinguished by Lord HARDWICKE, Viz.: that arising from facts or circumstances of imposition; and the person so acting will be decreed to be a trustee for the injured party to the extent of the interest of which he has been thus defrauded."

The language of Story, ubi supra, is as follows: "In the next place, the fraudulent prevention of acts to be done for the benefit of third persons. Courts of equity hold themselves entirely competent to take from third persons, and a fortiori from the party himself, the benefit which he may have derived from his own fraud, imposition or undue influence, in procuring the suppression of such acts."

It will be observed, the language of these authors is carefully confined to cases where the party against whom the parol trust is established has prevented the grantor, by fraudulent promises, from adopting some other mode of accomplishing his purpose which he was about to adopt, and induced him to place it in the power of such party to convert the property to his own use. This is the exact limit of the cases cited. Thus, where a husband of the tenant in tail in remainder, by force and management, prevented the tenant in tail in esse, who was on his death-bed, from suffering a recovery for the purpose of providing for other parties out of his estate by will, Lord THURLOW held, the estate was to be considered as if the recovery had been suffered. Luttrell v. Olmins, 11 Ves. 438, and

14 id. 290.

So, where the issue in tail promised his father, the tenant in tail, to provide for the younger children out of the estate, and thereby prevented his father from suffering a common recovery for that purpose, equity will compel a performance of the promise. Devenish v. Baines, Prec. Ch. 4. So where an heir or residuary legatee prevents a gift of a legacy by promising to pay it. Chamberlaine v. Chamberlaine, 2 Term, 34; Oldham v. Lichfield, 2 Vern. 506; Mestaer v. Gillespie, 11 Ves. 638; Thynn v. Thynn, 1 Vern. 296; Podmore v. Gunning, 7 Sim. 644.

It will be observed that in all these cases there is something more than the mere receipt of the title to real estate, with a parol promise to hold it, subject to a trust. There is an interference with the owner of the property, by means of which he is induced to forego the execution by himself of his designs for the benefit of a third per

Lantry v. Lantry.

son, and to leave the execution to the party deluding him by a false promise, and, through such false promise, obtaining title to the property.

The cases are reviewed by Chief Justice GIBSON, in Hoge v. Hoge, 1 Watts, 213, and the rule is laid down, that, in order to create the trust, there must have been some fraud, active or passive, in procuring the deed or devise- the mere breach of a promise to convey is not sufficient.

So, in Perry v. McHenry, 13 Ill. 236, this court said: "If the refusal to comply with a parol agreement constitutes such a fraud as to take a case out of the statute, then no case is within it; for a party has only to allege that a person contracting by parol fraudulently refuses to comply with the terms of his parol agreement, which he must do in every case, or there would be no necessity for resorting to a court of equity to enforce it, and a case is made to which the statute does not apply."

The distinction is this. If A. voluntary conveys land to B., the latter having taken no measures to procure the conveyance, but accepting it, and verbally promising to hold the property in trust for C., the case falls within the statute, and chancery will not enforce the parol promise. But if A. was intending to convey the land directly to C., and B. interposed and advised A. not to convey directly to C., but to convey to him, promising, if A. would do so, he, B, would hold the land in trust for C., chancery will lend its aid to enforce the trust, upon the ground that B. obtained the title by fraud and imposition upon A. The distinction may seem nice, but it is well established. In the one case, B. has had no agency in procuring the conveyance to himself. In the other he has had an active and fraudulent agency. In the one case, he has done nothing to prevent a conveyance to the intended beneficiary. In the other he has, by false promises, diverted to himself a conveyance about to be made to another.

Giving to the evidence all that can be claimed for it, the present case only comes in the first category. There is not a particle of evidence tending to show that Thomas Lantry ever uttered a word to induce the conveyance from his brother to himself, or to prevent a conveyance from his brother to appellee. On the contrary, the evidence indicates that John Lantry at no time intended a conveyance directly to his son; and conceding to the evidence its utmost VOL. II.-40

Lantry v. Lantry.

effect in favor of appellee, it appears John Lantry went to Chicago and asked his brother to accept the trust.

But, apart from the difficulty created by the statute, the evidence is extremely unsatisfactory, and the rule is, that even in that class of cases in which a trust can be established by parol, such evidence is not regarded with favor, and the court will not act upon it if it be not strong and irrefragable, or if it be contradicted by other testimony. Hill on Trustees, 167, and cases cited in notes. The evidence in this case shows merely what intentions John Lantry expressed before he went to Chicago - which he may have wholly changed-and some very indefinite statements testified, by one witness, to have been afterward made by Thomas Lantry. There is no direct evidence that he ever made even a parol promise to hold the property in trust, and he denies, in his own testimony, that he ever did.

To the account put in evidence showing his expenses in regard to the land we can attach no material consequence. It is consistent with his own statement that the land was deeded to him by his brother to be used, so far as he might deem advisable, for the benefit of the boy, and no further.

The decree must be reversed and the cause remanded.

Decree reversed.

CASES

IN THE

SUPREME COURT

OF

INDIANA.

STATE ex rel. LAKEY, appellant, v. GARTON.

(82 Ind. 1)

Stamps on official bonds — Limitation of national power of taxation.

Congress has no power to impose a stamp tax upon official bonds given to a state by its officers.

ACTION on an official bond. The case is stated in the opinion.

J. Morris, L. M. Ninde and R. S. Taylor, for appellant.

RAY, J. This action was upon the official bond of Nathan DeHaven, sheriff of Wells county, for a violation of official duty. No service of process was had upon the sheriff, and the suit was dismissed as to him. The sureties answered separately in three paragraphs. The first was a denial of the complaint. The second, that each surety signed upon the express condition and stipulation stated to the said DeHaven, and agreed upon by him, that he would procure twelve other names of as responsible men as there were in that county, to execute said bond as co-sureties with the defendants, which he had failed to do, and that said bond, executed September 23d, 1863, had never been acknowledged.

A demurrer was filed at the August term, 1865, to the paragraph of the answer, which was overruled by the court. As the case of Deardorff v. Foresman, 24 Ind. 481, decided at the November