Moore v. Jordan , 65 Miss. 229 ( 1887 )

Cooper, C. J.,

delivered the opinion of the Court.

The rule that a trust resulted to the grantor upon a voluntary conveyance, according to the common law forms of feoffment, grant, fine or recovery, etc., where no consideration is expressed or implied, and no trust is declared, and the circumstances rebut the presumption of a gift, seems not to apply to-modern conveyances. 1 Perry on Trusts, 184.

Mr. Pomeroy thinks it would apply to such conveyances if the deed “ simply contains "words of grant or transfer, and does-not recite nor imply any consideration, and does not, in the habendum clause or elsewhere, declare any use in favor of the grantee, and the conveyance is not in fact intended as a gift.” 2 Pomeroy’s Eq., 1035.

However this may be, it is evident that in the case before us no trust resulted to the grantor from the deed, for it recites a pecuniary, consideration, though nominal. Russ v. Mebius, 16 Cal., 350; Squire v. Harder, 1 Paige, 494; Leman v. Whitley, 4 Russ., 423; Philbrook v. Delano, 29 Me., 410; Graves v. Graves, 29 N. H., 129; Groff v. Rohrer, 35 Md., 327; 2 Story’s Eq., 1199. The habendum declares a use to the grantees, who are the children of the grantor, and there is a covenant of warranty. 2 Pomeroy’s Eq., 1035; Gould v. Lynde, 114 Mass., 366; Bragg v. Geddes, 93 Ill., 39 ; Groff v. Rohrer, 35 Md.; Farrington v. Barr, 36 N. H., 86; Stucky v. Stucky, 30 N. J. Eq., 546.

There is no pretence of a written declaration of trust by the grantees in favor of the grantor, and one by parol would be void. Code, Section 1296.

There are, therefore, but two other grounds upon which the relief granted by the court below can be supported : 1. That the conveyance was procured by fraud or imposition practiced upon the grantor; 2. That the conve3>"ance was made at the instance and procurement of one occupying a position of trust and influence, and that the grantees are volunteers.

On the first ground it is sufficient to say that the record is entirely 'free of evidence of any fraud against the grantor. The facts shown are that she was the owner of the estate of-her deceased father, one-half of which came to her by descent and distribution and the other by conve3rance from her mother, the widow. The intestate had been surety upon the official bond of an officer who had defaulted, and it was supposed by the administrator of the estate that a conveyance of the estate to third persons would be effectual to coerce a favorable compromise from the State, or would compel other sureties, who had made fraudulent conveyances of their estates to avoid liability on the bond, to contribute' their proportions in payment of the default. At his suggestion and for these purposes the conveyance was made. Mrs. Moore took no part in the scheme other than to receive the conveyance, and the only fraud that can be imputed to her is that she now declines to reconvey the property, as the administrator and the grantor in the deed thought she would do.

If this is such a fraud as will warrant the interposition of a Court of Chancery, the statute of frauds will be practically obliterated, since all parol contracts from- which a trust would arise, if they were in writing, will be enforced upon the ground that it is a fraud not to comply with them.

We do not ignore or deny the proposition that a Court of Chancery will not permit a fraud to he consummated by reliance upon the statute of frauds; as where one takes an absolute conveyance" of property which is intended as a mortgage, or takes advantage of a relation of trust or confidence, or by false representations or concealment, or by unfair devices or schemes, procures a conveyance to be made; or where advantage is taken of the mental infirmity of the grantor. These and other illustrations belong to a class of cases in which fraud (or in the eye of a court of equity its equivalent) co-exists with the conveyance, infects the conscience of the grantee, and disables him from asserting the validity of the instrument which is the foundation of his title, or from interposing the statute of frauds as a protection against his parol contract to convey. But such is not the case here. There is no fraud shown except that contemplated by the grantor in protecting the estate from the claim of the State. The manifest purpose of Mrs. Jordan was'to make a conveyance that should convey her title, and she relied upon an implied promise to reconvey to her on demand. If this promise had been an express parol one it would have been unenforceable because of the statute of frauds; it certainly cannot be stronger as an implied one. The danger which the statute of frauds intends to protect against is that of permitting titles held under solemn conveyances from being hampered, clogged or destroyed by oral evidence, by mere parol declarations or admissions, which are so easy of fabrication and so difficult to disprove. To secure against such danger the law wisely provides that declarations of trust shall be made and manifested by a writing, and closes the doors of the courts to those who assert an equitable title resting wholly by parol. But courts do not permit one to lay a trap for another, and by fraudulent conduct inveigle him into a position in which this statute is fatal to him, and then avail of its protection. The case of O'Connor v. Ward, 60 Miss., 1025, illustrates the principle referred to. O’Connor, who was the confidential friend and adviser of the Wards|by false representations of the condition of the estate of which they were heirs, and by promising to hold the property to their use and benefit, procured absolute conveyances to be.made by them. Having secured the property, he refused to réconvey or to execute the trusts he had agreed to assume. When suit was brought he defended upon the ground that the conveyance was to defraud creditors, and also because there was no‘ written declaration of trust. Under these circumstances we held that he could avail of neither defence; that his title was procured by fraud upon the grantors, and, therefore, that the conveyance should be annulled. But that case is widely different from this, in that here there is no fraud in the procurement of the deed ; no confidence abused; no position of trust perverted to ' obtain the deed. Without announcing an assent to the position of counsel for Mrs. Jordan, that the conveyance made by her was not a fraudulent one, because it could in no degree hinder, delay or defraud the creditors of the decedent, whose debts became fixed upon it by his death, its correctness might be conceded’ without changing the result. The most that can be argued is that the mala mens is not an obstacle to the relief she seeks. It certainly cannot be invoked as the foundation and root of an independent equity that would not spring from the transaction stripped of this element. What, then, is left to the complainant? Nothing hut that she has made a voluntary conveyance to her daughter, who, because it is voluntary, is under an implied promise to reconvey the property, but refuses so to do. This is, we think, insufficient to entitle her to relief,

Nor do we think that relief should be afforded because the administrator, Grayson, suggested the scheme in pursuance of which the conveyance was executed. He got no benefit by it, nor was it intended that he should. It is true that Mrs. More is a mere volunteer; but she is not a volunteer claiming under Mm, nor in a scheme concocted for his advantage. In the cases relied upon by counsel, and those therein referred to, some benefit passed to the confidential adviser or through him to another.

Rhodes v. Bate, L. R. I. Ch. App. Cas., 252; Gresley v. Mousley, 4 Deg. & J., 78; Archer v. Hudson, 7 Beav., 551; Huguenin v. Baseley, 14 Ves., 273 ; Gibson v. Jeyes, 6 Ves., 266; Dent v. Bennett, 4 My. and Cr., 269 ; Maitland v. Irving, 15 Sim., 437 ; Maitland v. Backhouse, 16 Sim., 57.

These were cases in which without regard to bona fides of the person occupying the confidential relation relief was afforded.

Where fraud on the grantor is perpetrated, those who acquire the benefit of the fraud, though not claiming through the confidential adviser, and though he secures no benefit to himself, have been decreed to make restitution.

Bridgeman v. Green, 2 Ves., 627; Luttrell v. Waltham, 9 Ves., 638.

But we have found no case from which it would follow that the conveyance here involved should be vacated. Grayson and Mrs. Jordan, for the purpose of consummating a scheme which they supposed would hinder, delay, and defraud creditors, selected Mrs. Moore as one of the persons to whom the conveyance should be made. His advice was, we may assume, implicitly followed as to the details by which the plan should be made effective ; but that it was does not affect -the validity of the conveyance as between grantor and grantee, nor commend the grantor to a more favorable consideration by a Court of Equity. On the whole record we see no reason why a Court of Equity should interfere to disturb the rights of the parties as fixed by the deed.

The decree will be reversed and cause remanded.