Sample v. Romine , 193 Miss. 706 ( 1942 )

The other members of the court are of opinion that the Suggestion of Error is without merit. It is therefore overruled. The writer is of the opinion that it ought to be sustained and that the question involved is so important that he ought to state his reasons therefor in a dissenting opinion.

The applicable statute of frauds is embodied in Chapter 64 of the Code of 1930, Section 3348 of which provides in part that "all declarations or creations of trusts or confidence of or in any land shall be made and manifested by writing, signed by the party who declares or creates such trust, or by his last will, in writing, or else they shall be utterly void," but that this requirement shall not apply to constructive trusts. This statute is substantially the same as the seventh section of the English statute of frauds. Appellee sued for one-third of all sums received from the mineral rights and in addition prayed that the court decree that he was the owner of a one-third interest in such rights in the land and that a commissioner be appointed by the court to execute a deed conveying to him such one-third interest. This is not a suit, therefore, by Romine for compensation for his services, but a suit for an interest in land and the mineral receipts therefrom. The question is whether under the undisputed facts this is an express trust or a constructive trust, if the former, of course, it had to be in writing, if the latter it did not. It seems clear that it was the former. Nothing was left unagreed to and the principal part of the contract rested in parole. A constructive trust is one on which some of the essential facts were not agreed to but results from relationship and acts of the parties.

A verbal agreement made upon the execution of a deed to land that the grantee hold the property in trust for the benefit of the grantor to prevent the latter's improvidence is within the statute. Horne v. Higgins, 76 Miss. 813, 25 So. 489; Miazza v. Yeager, 53 Miss. 135; Lewis v. Williams, 186 Miss. 701,191 So. 479. An oral contract by the father to convey land to his daughter in return for her care of him during his lifetime comes within the statute and is void, but the daughter could recover a fair value for her services rendered thereunder. Stephens v. Duckworth, 188 Miss. 626, 196 So. 219.

To illustrate: A employs B to buy a quarter section of land for him and to take the conveyance in A's name, and agrees that after this is done he will convey to B an interest in the land as compensation for his services. The contract is verbal. Such a contract is within the statute and void. On the other hand, if B violates the agreement and takes the conveyance in his own name there is a constructive trust in A's favor, under the definition of the concluding clause of the statute.

One of the latest works on Trusts and Trustees is Bogert, in seven volumes. In vol. 3, sec. 488, pages 1538 and 1539, there is a discussion of the application of the statute of frauds to a joint enterprise. On the latter page there is this paragraph:

"If, on the other hand, A and B contract that B shall get title to land in himself, and later, on A's payment of a certain sum, convey part to A, there is a contract within the fourth section, it would seem. The fiduciary obligation happens to be identical with the obligation required to be manifested by writing, under the statute. That it is a fiduciary obligation should not exempt it from obedience to the statute any more than if it were a nonfiduciary contract." The authorities in the notes to sustain it are from Arkansas, Georgia, Oregon, Oklahoma, Texas and Missouri. Giving the transaction the name of a "joint enterprise" does not take it from the operation of the statute. If it is a trust in land and is provable in any substantial respect by word of mouth, the statute governs regardless of the name given the transaction.

In the Wyoming decisions relied on by appellants it was expressly stated that they were based on the fact that the legislature of that state had not enacted the seventh section of the English statute of frauds.

The agreement was to convey to Romine an interest in the land, the contract was verbal, therefore it was void under the statute of frauds. If Romine had violated the agreement and taken the leases in his name there would have been a constructive trust in favor of the appellants.

The controlling opinion simply, in my judgment, obliterates Section 3348 of the Code of 1930.