Page:Harvard Law Review Volume 1.djvu/310



LECTURE NOTES.
— (From Prof. Ames’ Lectures.) — By the seventh section of the Statute of Frauds all declarations or creations of trusts of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party declaring such trusts.

Three views have been advanced as to the effect of the statute in requiring a writing:—First. That the statute has introduced a new formality requisite to the validity of such a trust or contract. This view is untenable, since it would bar a subsequent memorandum. Second. That the statute introduces a rule of evidence. This view has been countenanced by many writers, but is open to objection, since by it those cases are wrong which hold that, under the seventeenth section of the statute, the memorandum must exist at the time of the bringing of the suit; and the fact that the statute must be pleaded affirmatively, seems inconsistent with this view. Third. That the statute has changed the procedure, giving a defence to the party to be charged. The effect of this view is, that if there are the common law requisites of a trust, there is a valid trust, though, if of lands, it is not enforceable unless there is a proper memorandum.

Under this view, Gardner v. Rowe was correctly decided. It appeared in that case that one Wilkinson, shortly before his bankruptcy, made a transfer of a lease by an indenture reciting that the property had originally been assigned to him upon trust for the transferee. It was held that the transfer could not be set aside by Wilkinson’s creditors, the jury having found that the original conveyance to him was in fact upon trust.

On the same principle, if an oral contract to sell land is made before the marriage of the grantor, and a conveyance in accordance with the contract is made after the marriage, his wife has no dower in the premises. Again, suppose that A agrees orally to conveg land to B, and, later, agrees in writing to convey the same land to C. He then conveys to B, who has notice of the written contract with C. B is entitled to hold the land.

In Hutchinson v. Tindal the complainant claimed the land in question by a title superior to that of the defendant. The defence was