Arnwine v. Carroll , 8 N.J. Eq. 620 ( 1852 )

The Chancellor.

If there was a promise by Carroll, in consideration of receiving a deed for the farm from the widow, to pay the complainant a stipulated sum at her death, a suit at law would be maintainable. Such suit was brought; but the plaintiff was defeated, on the ground that he had made an assignment of all his property for the benefit of his creditors. If he has removed that objection, as, in his bill, he claims to have done, a Court of law is again open to him. There is no more reason for his coming here now than at first, except with a view of avoiding the statute of limitations, on the ground that the transaction created a trust. But it is no more a trust now than it was when the action at law was brought; and it may well be doubted whether such a promise would create a trust, to be enforced in this Court. Would the grantee hold the land in trust, if he promised, on receiving the deed, to pay a third person a stipulated sum at a future certain or uncertain time 1 Would. such promise create a charge upon the land ? But, if it would create a trust, it would be an express trust, and writing would be necessary.

If the promise was, to pay the complainant money, from time to time, as his wants might require, as I am disposed to think it was, if there was any promise at all, the bill does not seek this kind of relief; but prays a decree for the payment of the 12000.

Again, if the grantor’s object was, to provide moans for the complainant in such way that he could not squander them, and, as his counsel have argued, in such way that his creditors could not reach them, the idea that the promise should be made in such way that it could be enforced by any Court seems to be excluded; for, if any claim or right of action that could be enforced, either at law or in equity, were given to the complainant, his creditors could reach the fund arising from it.

And if it was the pleasure of the mother not to put matters in such shape that the complainant could compel any payment from Carroll, but that every thing should rest on his fidelity and discretion, I do not see that this Court should interpose. Certainly a decree for the payment of the whole sum, which is the relief prayed, would defeat the grante’s views. 2 Story’s. Eq. Jur. 1069, 1070, and notes.

It may further be said that the facts of the case as alleged by the complainant are not so satisfactorily made out as to call strongly for specific performance. The bill will be dismissed.

Order accordingly.