[Syllabus Material] [Syllabus Material]          Appeal from the District Court of the Fourth Judicial District.

         This was an action brought to compel the sale of a certain lot in San Francisco, and a division of the proceeds between the plaintiff and the defendant Endicott.

         It appears from the evidence, that in 1849 the defendant, James B. Endicott, consigned certain merchandise to the plaintiff, T. W. Osborne, with authority to dispose of the same, and invest the proceeds in such manner as the plaintiff might see fit for the joint account of the plaintiff and Endicott. The plaintiff, when he sold the merchandise, was in partnership with S. Brannan, doing business under the firm name of Brannan & Osborne. This firm sold the goods, received the money and invested it in the purchase of the lot in question, paying therefor $ 1,900, and took a conveyance in the name of S. Brannan and T. W. Osborne. Shortly after, Brannan conveyed his interest to Osborne, who, on March 1, 1852, executed a conveyance to the defendant, Endicott, and delivered it to George Endicott, as the agent of J. B. Endicott, who resided in China. This conveyance, immediately after the description of the lot, contains the following recital: " (Said lot having been purchased by me at auction sale of water lots, made by John W. Geary, Alcalde, under authority of grant from Gen. Kearny,) and held in trust for said James B. Endicott until this time."

         The plaintiff claims that the purchase was originally made for the joint benefit of himself and the defendant, Endicott, in pursuance of the authority given by the latter to plaintiff for that purpose, and that the conveyance to the defendant, Endicott, was made with the express understanding that the defendant was to hold it in trust, and that when sold, the proceeds were to be equally divided, according to the original agreement. The evidence on this point consisted of letters to plaintiff from defendant, Endicott.

         The Court below declined to pass upon the question of fact, and gave judgment for the defendant on the following grounds:

         1st. That the agreement claimed by the plaintiff to have been made with the defendant, Endicott, through George Endicott, at the time of the execution of the deed to defendant Endicott, is within the Statute of Frauds, and void.

         2d. That by the recitals in said deed, the plaintiff is estopped from setting up such agreement.

         3d. That parol evidence to vary or contradict said deed, is inadmissible.

         The plaintiff appealed.

         COUNSEL

         First. As to the estoppel.

         The deed in this case contains none of the essentials of an estoppel. It is a general and loose recital of a matter not necessary to the validity of the deed; the party's attention is not particularly drawn to it, the statement not of a particular fact, and inconsiderately made. The action is not brought on the instrument itself, but the question comes up collaterally as evidence; there is no plea of estoppel; the matter is, therefore, at large, and may be decided according to the truth, and particularly so as the case is in equity.

         The case of Carpenter v. Bulla, 211, 8 Mes. and W., cited by the other side, is directly in point to the above position, and also the case of Huntingden v. Haven, 5 Johns. Ch. C. 23, etc., cited in note to foregoing case; nor is the fact relied upon by complainant, of his interest, repugnant to the recital. See last case. The recital is true, and yet consistent with complainant's position.

         That a party is not estopped from showing truth when no plea of estoppel is made, inaddition to the case in Mes. and W. before cited; see also Voight v. Winch, 2 Barnwall & Alderson, 662; Bowman v. Royster et al. 2 Adol. & Ellis, 295, (29 E. C. L. 98.)

         The case of Sheley v. Wright, cited on the other side, Will. 9, is one directly on the bond itself, where the recital was not only material but was the foundation of the whole proceeding.

         In this case, if there is no trust which can be enforced, does it not appear from the whole case that Osborne parted with his interest without consideration, and has he not an equity entitling him to claim compensation to the amount of his interest in the proceeds of the lot? See Leman v. Whitly, 4 Russell Ch. 423, (4 E. Ch. Rep.)

         That the thing to be an estoppel must be precisely and directly alleged, and not a mere matter of supposal, also appears in the case of Right v. Barkwell et al. 2 Barn. & Adol. 278; 22 E. C. L., a case also cited on the other side.

         This being a question between the original parties to the trust, Endicott could not have been misled by the recital, because he had necessarily the means of knowing the truth. He knew at the very time Osborne was executingand delivering the deed to his agent, George Endicott, that he claimed an interest, and that the deed was not intended to operate upon that interest. Nor is it pretended that Endicott's action was affected by the recital, or that his position or rights were affected. The deed was merely intended, and so understood by the parties, to pass the legal title, the equities being left as they originally stood.

         Second. As to the Statute of Frauds.

         1. The party must set up and rely upon the statute as a defense, in order to be entitled to the benefit of its provisions, which is not done in this case. It is unnecessary to cite authorities to this proposition. Such is the uniform doctrine of Courts of Equity. The contract, although by parol, is neither immoral nor void under the law. The statute is a weapon of defense which the party entitled may or may not use for his protection. If he does not specially, by plea or answer, set it up and rely upon it as a defense, he waives its benefit, and the Court will decide upon the right of the parties under the evidence.

         2. This case is not within the Statute of Frauds.

         1. It is the case of a resulting trust, specially exceptedfrom the operation of the statute.

         2. There in written evidence taking the case out of the statute.

         As to the resulting trust.

         Endicott furnished the funds--Osborne the skill, judgment, labor, and attention to the whole business. These united were to be invested for the joint account and benefit of the parties. This was done, the title being taken in the name of Osborne alone. A trust results to the benefit of Endicott, which he could have enforced. If the title had been taken in the name of Endicott originally, the same result would have followed. Osborne contributed what was equivalent to money. Any valuable consideration being sufficient. (See Kennedy v. Kennedy , 2 Ala. 371; Malin v. Malin, 1 Wendell, 625.)

         The doctrine of resulting trusts in favor of the party advancing the purchase-money in whole or in part, upon a joint or several purchase, is perfectly well settled. (Dart on Vendors, 433 to 436 inc.; 3 Sugden, 173 to 181 and notes; Boyd v. McLean, 1 Johns. Ch. R. 582.)

         There is written evidence taking the case out of the statute, showing an express trust. (Peters C. C. R. 364, 366.) The letters contained in the record, bothbefore and after the purchase, clearly show the contract between the parties.

         It is not necessary, under the Statute of Frauds, that a trust should be created by writing; it is sufficient that it be manifested and proved by writing; a trust may be declared either before or after a conveyance absolute on its face.

         In 3 Sugden, 170, Sec. 17, it is said:

         " When two persons purchase an estate, and the conveyance is taken in the name of one of them, the trust may be proved by letters written subsequently to the purchase; the Statute of Frauds does not require that a trust shall be created by a writing, but that it shall be manifested and proved by writing; which means that there should be evidence in writing, proving that there was such a trust."

         So in Dart on V. and P., 435: " There is this distinction between agreements and declarations of trust--in the one, it is the agreement itself, which is the origin of the interest, that must be in writing; in the case of a declaration of trust, which is only the recognition of a pre-existing interest--it is the evidence of recognition, and not the origin of the transaction, which must be in writing; and, of course, it is notnecessary that the party seeking to enforce the declaration of trust, should himself have been a party to it."

         The same doctrine is laid down in the case of Malin v. Malin (1 Wendell, 625), before cited.

         So, if there is some written evidence inconsistent with the fact that the supposed purchaser was the actual purchaser, further evidence by parol is admissible to prove the truth of the transaction. (3 Sugden on Vendors, 189, Sec. 9; Cripps v. Lee, 4 Brown's Ch. 472; 4 Russell E. Ch. 423.)