Bailey v. Harris , 19 Tex. 108 ( 1857 )

Hemphill, Ch. J.

There is no error in the judgment. The agreement by Harris to purchase the land from Dorsett, is fully established by the evidence of three witnesses ; and under the facts, the purchase money may be regarded as the money of Harris, loaned to him by the appellant Bailey, and the deed taken in the name of Bailey to secure the repayment of the loan. The money being thus advanced by Harris, there would have been a resulting trust for his benefit, even under the most strict meaning of the terms, viz : that such trust is one which results to the person who advances the purchase money, but takes the deed in the name of another.

But it is immaterial whether the facts be such as by implication or construction of law, would raise a resulting trust. The laws of this State do not prohibit the declaration or creation of trusts, or their proof, by parol. They do not restrict the creation of parol trusts, (as do the laws of England and most of the other States,) to such as arise only by implication or construction of law. If the arrangement between the parties in relation to this land, clearly created a trust between the parties to this suit, it will be enforced although it be by parol, and whether it be or not, in a technical sense, a resulting trust. (James v. Fulcrod, 5 Tex. R. 512.)

The transaction is in the nature of a mortgage, and certainly has as much equity, and is as much entitled to the aid of the law, as mortgages created by the mere deposit of title deeds. (2 Story Eq. Sec. 1250.)

The Statute of Frauds, requiring contracts for the sale of lands to be in writing, was designed to suppress frauds \ but if allowed to extend to cases such as the present, which in fact, it does not reach, the result would be the encouragement and support, and not the suppression of fraud.

The facts show clearly that there .was a valid and legal trust between the parties; and the judgment decreeing, in effect, the execution of the trust, is affirmed.

Judgment affirmed.