Argued September 26th, 1870
Decided December 29th, 1870
George B. Hibbard, for the appellant. Asher P. Nichols, for the respondent.
When a party to a civil action has made admissions of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence; and it matters not whether the admissions were in writing or by parol, nor when nor to whom they were made. Admissions do not furnish conclusive evidence of the facts admitted, unless they were made under such circumstances as to constitute an estoppel, or were made in the pleadings in an action, when they are conclusive in that action. They may be contained in a letter addressed to the opposite party, or to a third person, and in either case are entitled to equal weight and credit. They are received in evidence, because of the great probability that a party would not admit or state anything against himself or his own interest unless it were true. And I am unable to see why the rule does not apply to admissions contained in the pleadings in an action under our system of practice, which requires the facts to be alleged truly in the pleadings. It must first be shown, however, by the signature of the party, or otherwise, that the facts were inserted with his knowledge, or under his direction, and with his sanction. Here the answer, which is claimed to show the admissions, contains the assertion of facts which, from the nature of the case, if true, must have been within the knowledge of the defendant, and it is verified by the defendant. I can conceive of no principle or reason for holding that admissions made under such circumstances are not evidence against the defendant. It is said in Phillips on Evidence (vol. 1, Van Cott's ed., 1849, p. 366), that "a person's answer in chancery is evidence against him, by way of admission, in favor of a person who was no party to the chancery suit; for the statement, being upon oath, cannot be considered conventional merely."
By the statute (29 Charles II, chap. 3, § 7), it was enacted "that all declarations or creations of trust or confidence of any lands, tenements or hereditaments, shall be manifested or proven by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect." This statute provided not for the creation of trusts, but simply for proving them. They might be created by parol, but could only be manifested or proved by a writing. (4 Kent, 305; 1 Cruise, Dig. by Greenl., title 12, chap. 1, §§ 36 and 37, p. 390; Tiffany and Bullard on Trusts, 353, 355.) Under this statute it was necessary to prove by writing the whole trust, not only that there was a trust, but what it was; otherwise the object of the statute, which was to prevent frauds and perjuries in the proof of trusts by parol declarations, would have been thwarted.
Our statute, upon the same subject (2 R.S., 135, § 6), prior to 1860, was as follows: "No estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same or by his lawful agent thereunto authorized by writing." This was a statute providing, among other things, for the creating of trusts, and not simply, like the English statute, for manifesting and proving them. It required that the trusts should be created by deed or conveyance, subscribed by the party, and the only proof of them was such deed or conveyance. But in 1860 (Laws of that year, chap. 322), the subsequent section (7) was amended so as to provide that the preceding section should not be construed so as "to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same." By this amendment our statute as to the creation and proof of trusts is rendered in effect substantially the same as the English statute above quoted. It is no longer required that trusts should be proved by some deed or conveyance creating or declaring them; but they may be proved by any writing subscribed by the party. The statute does not require that the writing should be inter partes; but within the letter and spirit of the law, any writing subscribed by the party will be sufficient if it contain the requisite evidence.
I, therefore, entertain no doubt that the alleged trust in this case could be proved by the answer of the defendant, which was given in evidence, if it was sufficiently manifested in the answer. But there is the difficulty. All this answer contains that is material to the purpose is, that the two mortgages were given by Barr for the accommodation of Cook, to enable him to borrow money. There is no allegation whatever in reference to Barr's title or his deed, or the purpose for which the deed was given to him, or the title placed in his name. It does not mention or admit any trust whatever. The allegation of the plaintiff is, that the deed was given to Barr simply to enable him to give back the mortgages, that he might raise money upon them, and that Barr took the title in trust for him for this purpose. While this answer alleges that Barr gave the mortgages for this purpose, it does not admit that he received the deed for any such purpose or upon such a trust. All the allegations in the answer are perfectly consistent with his absolute ownership of the land, and no trust in the land is properly or necessarily inferable from them. As it appears upon the answer, it is simply a case of the owner of land giving mortgages upon his own land for the accommodation of his friend. The deed and mortgage make no mention of the trust, and the only writing relied upon to prove it is this answer. The parol evidence and the acts of the parties show clearly the alleged trust, but these cannot be resorted to to help out the proof furnished by the writing. The writing must show that there is a trust and what it is, and failing in this it is insufficient.
In 1 Hilliard on Real Property, 4th ed., 425, it is said "a trust cannot be established by parol evidence, even though this goes to confirm other written evidence."
In 1 Greenleaf's Cruise on Real Property, 356, in note, it is said that "the evidence must all be in writing without resorting to parol evidence, even to connect different writings together." Greenleaf, in his Work on Evidence (vol. 1, § 268), says that verbal testimony is not "admissible to supply any defects or omissions in the written evidence; for the policy of the law is to prevent fraud and perjury by taking all the enumerated transactions entirely out of the reach of any verbal testimony whatever."
In Leman v. Whitely (4 Russell, 423), the plaintiff had conveyed to his father, by deeds of lease and release, a certain estate for the expressed consideration of £ 400 paid. The bill alleged that the estate was thus conveyed by the advice of an attorney, so that the father could raise money by a mortgage of it for the use of the son; that no part of the consideration named in the deed was paid; that the father died without having raised the money or made any conveyance, and that he devised all his real estate by general deeds. The prayer of the bill was that the devisees of the father might be decreed to be trustees of the plaintiff. The facts alleged in the bill were admitted or established by parol testimony, and yet the master of the rolls held that the trust could not be established, and that "to give effect to the trust would be in truth to repeal the statute of frauds."
I am of the opinion, therefore, that the judgment should be reversed and new trial granted, costs to abide event.
All concur for reversal.
Judgment reversed and new trial granted, costs to abide the event.