Kidd v. Carson , 33 Md. 37 ( 1870 )

Brent, J.,

delivered the opinion of the Court.

The bill in this case was filed to enforce a lien upon certain lands of the appellants for a balance of purchase money due thereon. The lien is admitted, but it is insisted by the appellants, that the amount claimed to be due should be credited by profits realized by John Carson and J. Harvey Eowland from the sale of certain other lands, which they had bought from Milton Y. Kidd, and for which he executed to them a deed of conveyance on the 21st of March, 1853. This credit the Court below refused to allow, and the propriety of such refusal is the single question presented by this appeal.

The deed from Kidd to Carson and Eowland is in the ordinary form of a deed of bargain and sale, conveying a title in fee to the lands sold. It is not alleged that this deed is different in form and character from what the parties intended at the time of its execution. On the contrary it is admitted to be> just such a deed as they intended to make. The purchase money, set forth in it as the consideration, has been all paid, and there is no question, therefore, of any appropriation of that fund. But it is said that Carson and Eowland agreed at the time of the conveyance to credit any profits which might be made by them from a sale of this land, over and above the purchase money paid, upon the amount due for the land which is sought to be sold under the bill filed in this case. We have no doubt from reading the record that such an agreement was made, and that profits have been realized by them upon the purchase. But the agreement rests entirely in parol, and was not reduced to any writing signed or acknowledged by the parties. To enforce it would be to change the character of the deed, which had been drawn and executed as the parties intended it, and “ to set up a conventional trust on the foundation of a special parol agreement.” This cannot be done. It would be in plain and direct violation of the Statute of Erauds, which provides that all declarations or creations of trust or confidences of any land shall be utterly void, unless manifested and proved by some writing signed by the party who is by law enabled to declare such trust. McElderry vs. Shipley et al., 2 Md., 25; Wilson vs. Watts, 9 Md., 434; Wolf and wife vs. Corby et al., 30 Md., 356.

(Decided 28th June, 1870.)

This case was very fully argued on the part of the appellants, but we cannot perceive that any grounds have been presented to avoid the force of the Statute, and as reluctant as we may be to reject the claim of the appellants to the credit in dispute, we must affirm the decree of the Court below.

Decree affirmed, and cause remanded

for further proceedings.