Gould v. Lynde , 114 Mass. 366 ( 1874 )

Endicott, J.

It is conceded by the plaintiff that there was no express trust upon which the conveyances were made, the alleged agreement between the parties being oral; but it is claimed, that a resulting trust to the plaintiff arises out of the transaction.

The rule, that on a voluntary conveyance without consideration a trust results to the grantor, was confined to common law conveyances, and does not apply to modern conveyances in common form, with recital of consideration, to the use of the grantee and his heirs. Such deeds to a stranger, and a fortiori when the purpose of the grant is tc convey to a wife, exclude any resulting trust to the grantor

The distinction between such a conveyance and a conveyance to a third party where another furnishes the money to whom a trust results, he not being estopped by the recitals and covenants of the deed, is too well established by our authorities to require illustration. Walker v. Locke, 5 Cush. 90. Whitten v. Whitten, 3 Cush. 191. Bartlett v. Bartlett, 14 Gray, 277. Titcomb v. Morrill, 10 Allen, 15. Blodgett v. Hildreth, 103 Mass. 484. Cairns v. Colburn, 104 Mass. 274. Peirce v. Colcord, 113 Mass. 372. Perry on Trusts, §§ 161, 162, and cases cited.

The subsequent agreement, or attempt by the wife to convey, does not affect the question, as a trust must result, if at all, the instant the deed passes. Barnard v. Jewett, 97 Mass. 87.

The wife therefore held the estate, subject to no trust for the use and benefit of the plaintiff, and the respondents cannot be called upon to release and assign to him any title they may have therein, as her heirs at law.

The statute is peremptory that no conveyance of real estate by a married woman shall be valid without the assent of her husband in writing, or his joining with her in the conveyance. Gen. Sts. c. 108, § 3. As the plaintiff’s wife made the deed to Wiley without such assent or joinder, no title passed.

Demurrer sustained; bill dismissed.