
    John B. Reid and others vs. Samuel Reid and others.
    
      Trusts — Statute of Frauds — Parol Evidence.
    
    Trust in land declared upon the deposition in writing of a witness who was the original trustee under an absolute conveyance to him, the statements in the hill and answer, and parol evidence.
    The provision of the Statute of Frauds that a trust must he “manifested and proved by some writing” is satisfied by any writing made long after the trust was created, and in such case the trust will he held to have existed from the time it was created.
    Where the existence of a trust is shown by writing, parol evidence may, it seems, be let in to show its terms.
    BEFORE INGLIS, OH., AT YORK, JUNE, I860.’
    This case will be sufficiently understood from tbe. decree of his Honor, tbe Circuit Chancellor, which is as follows:
    Inglis, Cb. Tbe plaintiffs, as tbe beirs at law of George Reid, are seeking partition between themselves and Samuel Reid, one of tbe defendants, of a tract of land described in tbe pleadings. Their right to seek partition is denied, on tbe ground that George Reid and Samuel Reid held the legal title to tbe land, not for themselves alone, but in trust for tbe use of tbe beirs generally of Thomas Reid, their father.
    Thomas Reid was certainly, for many years, tbe owner of this land, bolding tbe larger part under a lease for ninety-nine years from tbe Catawba Indians, and tbe residue under a grant from the State. By an indorsement on tbe lease, dated October 11, 1830, be assigned bis interest therein to Thomas Walker, and on tbe same day conveyed to him tbe small parcel of twenty acres held under tbe grant. Thomas Walker by a similar indorsement transferred tbe lease, on tbe 11th of August, 1837, to Samuel Reid and George Reid, and subsequently conveyed to Samuel Eeid tbe twenty acre parcel. In each of these transfers the conveyance is, professedly, upon a money consideration, and is in its terms absolute. On the 13th of June, 1850, George Eeid and Samuel Eeid took out a new grant to themselves for the whole of this land.
    If the transfer by Thomas Eeid had been expressed to be in trust to pay out of the land itself or out of the rents and profits thereof a specified debt, a trust, for the use of the grantor and his heirs, &c., in all the surplus, after the purpose so expressed had been satisfied, would have resulted by implication of law. He who, having full knowledge of the facts, had taken from Thomas Walker a transfer of his estate, unless under a sale made in fulfilment and execution of the trust, must have held subject to the trust. Though no such trust is expressed in the present instance, it is quite certain that such an one in fact existed, and that the transaction is precisely of the character just described. Thomas Eeid was indebted to Thomas Walker, and conveyed his estate in the land to him as a security for the payment of the debt. In August, 1837, when a small balance only of the debt remained unpaid, Samuel Eeid and George Eeid, two of the heirs of Thomas Eeid, who had died in the mean time, paid this balance, and took a transfer from Walker of his title for the benefit of the family.
    It is objected that the existence of a trust for the payment of a debt is proved only by parol evidence; and to give effect to such proof would be in violation of the seventh section of the Statute of Frauds. Such, however, is not the fact. It is to be observed that the statute does not require that the trust shall be created or declared originally in writing; only that it shall be “manifested and proved by some writing.” The “ writing” which manifests or proves the trust need not be contemporaneous with its creation. A written acknowledgment of the party enabled by law to declare the trust, though made long after its original creation, will be sufficient; and will have relation back to the time of the creation thereof, so bs to defeat the rights which parties claiming under the trustee by immediate conveyances might otherwise have acquired. Of course Iona fide purchasers, for valuable consideration, without notice, will be protected. A deposition signed and sworn to, or a statement in a bill or answer, may constitute such written proof of the trust as will satisfy the statute. Rutledge vs. Smith, 1 McO. Oh. 129; Browne on St. Erauds, sec. 97 ; Hill on Trustees, (56 ;) Hill on Trustees, (57 ;) Browne on St. Erauds, sec. 100; Hill on Trustees, (61.)
    The fact that the conveyance by Thomas Eeid, though in terms absolute, was, by the agreement of the parties, upon trust for the payment of a specific debt, is here proved by the written deposition of Thomas Walker, the original trustee, taken in the present cause, sworn to and signed by him ; by the written statements of the plaintiffs themselves, who are the heirs of one of the subsequent joint holders of the legal title, made in their present bill; and by the written declaration of Samuel Eeid, the other joint holder of the legal title, contained in his answer. This written proof explains clearly enough the nature of the trust, but, whether so or not, it at least suffices to show that the persons apparently entitled to hold absolutely are not really so; and, therefore, to let in parol proof to establish the trust, notwithstanding the statute. The admissions of George Eeid, abundantly testified to by the witnesses, and on this ground listened to by the Court, fully supplies whatever the written proof may seem to lack. It is equally established by this evidence, written and unwritten, that Samuel Eeid and George Eeid, when they took from Thomas Walker a transfer of his estate in the land, well knew the terms upon which he had held, and agreed with him and with each other to hold upon the same terms. If the first trust be established by competent proof, the ulterior trust need not be manifested by writing, for it results 
      from the existence of the former by implication of law. The demand of the statute is, in the opinion of the Court, satisfied. Browne on St. Frauds, sec. 3; Hill on Trustees, (62.)
    But, further, the trust upon which Samuel Reid and George Reid thus held the legal title to this land has been, in fact, executed. It appears from the testimony of Thomas Walter that the balance of the debt due to him, being about forty dollars, was paid by Samuel Reid. J. D. Crawford, who administered upon the estate of Thomas Reid, testified that he paid all demands against the estate, except a claim of Samuel Reid for forty dollars. The heirs of Thomas Reid being all of age, made an agreement among themselves in reference to the manner in which the estate which remained for distribution should be divided, and a full and final settlement had. In the year 1850, in pursuance and part execution of this agreement, this tract of land, as constituting part of said estate, was by actual survey, in the presence and with the consent, approbation, and concurrence of George Reid, divided into three parts of unequal extent and value, and the parcels were assigned to three of the children, to be taken by them severally, at a valuation thereafter to be made, in whole or in part satisfaction of their respective distributive shares in said estate. Those to whom these parcels were so assigned thereupon at once took several possession of their respective parcels, and have held the same thence hitherto, making improvements U|3on the faith of their title, and each one exercising all ordinary acts of ownership over his or her own parcel. It is true that the division of Thomas Reid’s estate thus agreed upon was at the time only partially effected, and has not yet been wholly completed. This was owing, however, not to any thing concerning this land, but to causes which, in the regard of the parties, only delayed the final consummation, and did not annul or revoke what had been done. It cannot escape observation that, in the division of this tract of land, a portion considerably larger and more valuable than either of the other two was allotted to Samuel Reid, a fact which finds a ready and reasonable explanation in the supposition, that his advance to pay the balance due to Walker was intended to be first satisfied out of the valuation of the part so allotted to him, before he was charged on account of his distributive share. If, therefore, the trust upon which this land was originally transferred by Thomas Reid could not be proved by any written evidence thereof, yet, having been executed by George Reid, he and of course bis heirs are bound by its execution, and cannot now recall that, in order to set up again their apparently absolute title. Elliott vs. Morris, Harp. 281.
    
      It is the judgment of the Court that the plaintiffs are not, in their capacity of heirs of George Reid, entitled to a partition of this land between themselves and Samuel Reid, by virtue of the joint seizure of George Reid and Samuel Reid, in the lifetime of the former.
    Anticipating the result thus attained, the plaintiffs have further asked that, in the event of such, a judgment, the land shall be divided as the estate of Thomas Reid among his heirs, and that the portion thereof to which they, as representing George Reid, one of these heirs,.may be entitled, shall be set apart to and partitioned among them, to be enjoyed in severalty. This Court always aims to do complete justice, and that can scarcely be accomplished in the partition of an estate by piece-meal. Thomas Reid at his death was seized of another tract of land, called by some of the witnesses the Chambers tract: This tract was, by the consent and joint action of all the heirs, sold about the year 1837, and after the application of so much of the proceeds, as the deficiency of the personal estate rendered necessary, to the payment of the intestate’s debts, the residue was, by consent, distributed among certain of the heirs, to be accounted for in their portions of the estate. In January, 1828, Thomas Reid had conveyed to George Reid an undivided moiety of a tract of land known as the Turkey Creek tract. Tbe consideration upon which it is declared in the deed that this conveyance was made is five hundred dollars. The declarations and conduct of George Reid very satisfactorily evince, however, that no part of this money consideration was ever paid by him, but that he was to account with the other children for its value, or the proceeds of such sale as he should be able to make of it, as part of the estate, and in the nature of an advancement. The assumption by the other heirs aDd the admission by George that this was the case, caused it to enter as an element into the basis of the agreement already mentioned as made among the members of this family for the division and settlement of their father’s estate. The distribution of the proceeds of the Chambers tract was made in pursuance and part execution of this agreement. The division and allotment of the Walker tract was also in pursuance and in further execution of it. A liti- • gation which arose with third parties about the title to the Turkey Creek tract, or part of it, and consequent delay in effecting a sale, or in collecting the purchase-money, alone suspended the full execution of that agreement and completion of the partition. To these admissions of George Reid, by word and act, effect must be so far given as not to disturb the arrangement made by the members of this family among .themselves for the division of their common patrimony, and 'in such large part executed. The plaintiffs cannot have a partition of the Walker tract, as the estate of Thomas Reid, without bringing into this partition the Turkey Creek tract, and in some manner accounting for it as part of the estate.
    It is ordered, that it be referred to the Commissioner of this Court to inquire at what price the Chambers tract was sold, and what disposition was made of the proceeds of the sale, and, particularly, whether any of the children of Thomas Reid received any part of such proceeds; if so, what sums were so received, by whom, and at what date; into what parts the Walker tract was divided in 1850, and the value at that time of the several parts ; to which of the children these parts were severally assigned ; what amount was then due to Samuel Reid for his advance of the balance due to Walker, with the interest from the date of such advance; whether the said tract, or any part of it, was in the possession of any of the children between the years 1887 and 1850; if so, which of them had such possession, of how much of the tract, and what rent ought to be charged against them in favor of the estate; what off-sets or discounts, if any, for payment of the rent reserved on the Indian lease or otherwise, are proper to be allowed against such charge of rent; the value of the undivided moiety of the Turkey Creek tract conveyed by Thomas Reid to George Reid at the death of the former, regard being had to the condition of the land when conveyed in January, 1828, and the amount of any costs and expenses incurred and paid by George Reid, as stated in the pleadings, in conducting any litigation necessary for the vindication of the title derived from Thomas Reid, or otherwise, for the preservation of said Turkey Creek land to the estate.
    It is further ordered, that the plaintiffs have leave to account for the sums received by George Reid for the undivided moiety of the Turkey Creek land conveyed to him by his father upon his sale thereof, with interest from the date of such receipt, subject to the deduction of expenses of litigation, instead of the value of the land at the death of Thomas Reid, with interest therefrom, if they so prefer; but in that case they must also account for the proper rent, so long as he used the land between the date of his father’s death and the date of his sale, and the Commissioner will regulate his inquiry accordingly.
    1't is further ordered, that the several sums which, upon inquiry, shall appear to have been received by any of the children of Thomas Reid, as part of the proceeds of the Chambers tract, with interest from the date of such receipt, the valuation of the several parts into which the Walher tract was divided in 1850, with interest from the date of such division, (first deducting from the valuation of the part allotted to Samuel Eeid the sum which shall be found to have been due to him for the advance of the balance due to 'Walker, with interest from the date of such advance,) the valuation of the undivided moiety of the Turkey Creek tract, with interest from the date of Thomas Eeid’s death, (deducting from this amount the expenses of litigation paid by George Eeid,) or, if the plaintiffs so choose, the sums received by George Eeid upon the sale of the Turkey Creek tract, with interest from date of receipt, and rent prior to the sale as hereinabove is ordered, deducting expenses of litigation as before, and the amounts which shall be found due by any of the children for the rent of the Walker tract before the division of 1850, be regarded as constituting together the estate of Thomas Eeid now for distribution; and that the Commissioner ascertain the shares to which the several heirs are entitled therein, and what sums have been received by each one heretofore in money, land, or other property, or in the use and occupation of the property estimated in rent; which, if any, have been overpaid, and which have not received their shares in whole or in part, and devise a scheme for equalizing the shares, by requiring those who have been overpaid to pay to such as have not been paid; and for securing such payments by liens, as far as possible, upon the property so received from the estate, or otherwise; and that he report the result of the inquiries, calculations, distributions, recommendations, &c., herein ordered, together with any special matter, to the Court, at the next term.
    It is' further ordered, that the Commissioner devise and report some scheme for the payment of the costs of the cause, out of the estate of Thomas Eeid, by requiring such of the parties aá shall be found to have been overpaid to pay into Court a sum sufficient to satisfy the costs, the parties so paying to have credit in the accounts to be stated between the estate and themselves for the sums paid.
    The complainants appealed, and now moved this Court to reverse the decree, on the grounds:
    1. Because his Honor permitted parol evidence to be offered, for the purpose of raising a trust in the lands of George Reid, deceased, contrary to the seventh and ninth sections of the Statute of Frauds.
    2. Because the admission of the parol testimony of Thomas Walker, to add to, vary and contradict his own deed, executed by him to George and Samuel Reid, twenty-three years after its execution, is contrary to all precedent and well-established principles of law.
    3. Because, it is respectfully submitted that, after Thomas Walker made an absolute and unconditional sale of the lands to George and Samuel Reid, and had divested himself of all interest therein, it is wholly incompetent for him, either by parol or written testimony, to convert them into trustees for others.
    4. Because, if Thomas Walker be held as competent to declare a trust in land twenty-three years after he had parted with all interest therein, it is submitted that his deposition, taken by commission, is not such a voluntary written declaration thereof as will support the tr(ust in said land.
    5. Because the defendants were parties to the fraud perpetrated by Thomas Walker upon the creditors of Thomas Reid, in conveying the Walker tract to George and Samuel Reid, for the purpose of screening it from liability for the debts of the said Thomas Reid; and, therefore, they cannot ask this Court to relieve them from the consequences of their own fraudulent designs and acts.
    
      6. Because there was neither written nor unwritten testimony sufficient to warrant the Court in decreeing á trust in the Turkey Creek land.
    7. Because the testimony of the Clintons and McElwee is so confused, conflicting, and uncertain, that no trust in the Turkey Creek land could be based upon it. It points with certainty to neither a subject-matter of a trust nor to the persons who are to take a beneficial interest.
    8. Because, according to the testimony of said witnesses, the declarations of George Reid can be fairly interpreted to amount to nothing more than an admission that he had received the Turkey Creek land from his father, by way of advancement, though it is submitted that it does not amount to even so much.
    9. Because his Honor erred in supposing that the survey of the Walker tract in 1850, and the allotment of portions thereof to some of the defendants, was in part execution of a trust in said lands by George Reid, when it is submitted that the testimony does not justify nor suggest such an inference; and by no possible deduction from the evidence could said survey and allotment be held as amounting to a part execution of a trust in the Turkey Creek land.
    10. Because the decree of Chancellor Inglis overrides the decree of Chancellor Dargan, ordering a sale of the Walker tract, and is totally inconsistent with an order passed by his Honor himself during the term at which this case was heard, in which he confirmed the report of the sale of said land made by the Commissioner under the decree of Chancellor Dargan.
    11. Because the Statute of Limitations, or lapse of time, is a bar to the claims of the defendants to any beneficial interest in either tract of land, more especially to their claims as Cestui que trusts in the Turkey Creek tract.
    
      Moore, for appellant.
    
      Melton, contra.
   Per Curiam.

This case depends upon a very remote transaction. The parol proof makes a very clear case for the complainants.

The only question is upon its admissibility. The Chancellor has examined that question, and has admitted the proof upon satisfactory grounds.

It is therefore ordered and decreed that his decree be affirmed.

O’Neall, C. J., Johnstone, J., and Wardlaw, J., concurring.

Decree affirmed.  