
    Joseph H. Peirce versus John Dorr.
    A bill in equity sets forth, that on March 7,1811, P conveyed land to D as security for a debt; that on March 21, P conveyed other land to D as security for a sum then lent to P ; that these conveyances were by absolute deeds, and that no writing or instrument of defeasance was taken at the time ; that the two transactions were entirely independent of each other, but that D, taking advantage of P’s necessities, connected them together; that P, in October 1811, repaid the sum lent, and requested D to reconvey the land which he held as security for that sum, but that D, instead thereof, gave a note promising to pay that sum with interest, when the lands should be sold, provided they should produce the sums expressed in the deeds, with interest, and if not, the deficit was to be considered as part payment of the note ; that in 1813, by a writing signed by D and P, reciting that D had purchased the lands and that P was desirous of repurchasing them, D agreed, that upon payment of a specified sum in two years with interest, he would reconvey the lands, and that if a lair price could be obtained before the expiration of the two years, he would sell a part or the whole, and apply the proceeds to his debt and pay over to P any surplus ; and that the note was thereupon given up to D ; and the bill alleged that this was a trust, and that D should perform the trust. Held, that all the previous agreements were merged in this last, and that this was not a trust within the Si. 1817, c. 87.
    This was a bill in equity, brought by the plaintiff in his own right and as executor of the last will of Joseph Peirce.
    The bill charges, that on March 21, 1811, Dorr lent to Joseph Peirce 3000 dollars, and that Peirce thereupon, as security for the loan, executed to Dorr an absolute deed of certain lands in Maine, without taking from him any memorandum in writing or instrument of defeasance; that on April 2, 1811, Peirce, at the request of Dorr, returned 1000 dollars, and thereupon Dorr gave him the following note : — “ Boston, April 2, 1811. Value received I promise to pay Joseph Peirce one thousand dollars with interest, when certain lots of land at West Boston, which I bought of him, as by the deed of the 7th of March last, and certain other lots and lands which 1 purchased of him lying in the District of Maine, as by the deed of the 21st of March last, shall have been sold, provided they produce in cash with interest the several sums expressed i” the respective deeds, and if not, the deficit is to be considered as part payment of this note. John Dorr;” that on the 4th of October following, at the like request of Dorr, Peirce returned him 2000 dollars, the rest of the sum lent, and Dorr ought to have reconveyed the lands in Maine, and Peirce requested him so to do ; but Dorr refused, and in lieu thereof gave Peirce a note like the one above recited, except as to the date and the sum ; that the transaction of March 21, 1811, was wholly distinct from any other transaction between the parties, but that Dorr availed himself of the embarrassed state of Peirce’s affairs at the time, and of his age and infirmities, to connect it with a transaction of March 7, 1811, and declared that he would reconvey the lands in Maine, on the final settlement of their dealings ; that on March 7, 1811, Peirce was indebted to Dorr, according to Dorr’s statement, in the sum of 2272 dollars, to secure the" payment of which sum Peirce executed to Dorr an absolute deed of two lots of land lying at West Boston ; that these lots exceeded in value the debt due to Dorr, and that it was understood that Dorr should sell the same, and after deducting from the proceeds the debt due to himself, should pay the surplus to Peirce ; that it was not necessary for the security of Dorr, that he should retain the lands in Maine, and that Peirce submitted to it because he supposed himself to be without remedy ; that Peirce made repeated requests to Dorr to sell the lots in Boston, and upon his refusal, proposed that Dorr should reconvey to him one of the lots, in order that he might, by the sale thereof, raise money to satisfy the claim of Dorr, but that Dorr refused this request also ; that during this negotiation Dorr delivered to Pierce a statement of the account between them, in which he charges 105 dollars “ for commissions and care ” as trustee, and also sent to Peirce the form of an obligation, proposed to be executed by Dorr, releasing one of the lots in Boston, and binding himself to release the other lot and the lands in Maine, upon Peirce’s paying 3497 dollars, with interest, within two years from December 14, 1811 ; that on May 3, 1813, Dorr and Peirce signed a writing as follows : — “ Be it known' to all men, that whereas John Dorr purchased of Joseph Peirce two eeriain lots of land at the westerly part of Boston, as described in a deed on record dated 7 March, 1811 ; also certain other lands and an island, &c. as described in a deed on record dated March 21, 1811 ; and whereas it is the desire of said Peirce to repurchase said lots, land and island ; be it known, that it is now mutually agreed, that upon the payment made to Dorr his heirs :r assigns, of the sum of 3296 dollars 46 cents, m two years from the 27th day of March last, together with interest from said day, which said Peirce hereby agrees to do, and also to pay any further sum that may then be due to said Dorr, the latter hereby agrees to quitclaim to him said Peirce, his heirs or assigns, all the said lots, land and island, &c. And to facilitate the accomplishment of this agreement, said Dorr agrees to quitclaim in like manner either or all said lots, land and island whenever, before the two years before named have elapsed, a fair price can be obtained therefor, and to apply the proceeds, so far as the same will go, to the payment of the aforesaid sum or sums and interest on the same. And should any money remain in said Dorr’s hands thereafter, the same shall be paid to said Peirce ; ” that the two notes signed by Dorr on the 2d of April and 4th of October, 1811, were thereupon delivered by Peirce to Dorr ; that prior to the execution of this writing and the giving up of these notes, Dorr exhibited a statement of the account between him and Peirce (which is set forth, and which includes these notes) ; that by force of the writings and statements of Dorr set forth in the bill, he held the lands in Boston and Maine in trust eventually for the benefit of Peirce, for the purpose of selling the same and applying the proceeds in satisfaction of the debt due to himself, and paying over the surplus, if any, to Peirce ; that Dorr continued to hold the lands, though solicited by Peirce to dispose of them", they being, as Dorr knew, the only fund out of which the debt could be paid, and that Peirce, despairing at last of obtaining justice, wrote and signed, on the 1st of January, 1826, a declaration (which is made a part of the bill) in which he states, that having involved himself in debt by indorsing certain notes, he borrowed 3000 dollars of Dorr, for the purpose of taking up his indorsements, and proposed to mortgage to Dorr, for his security, certain lands in Maine, but that being advised by counsel that a mortgage would not be safe, since he might be considered as thereby secreting his property from creditors, he made an absolute deed as the safer course, and for no other reason, as Dorr must have known ; that in April and October, 1811, he returned the 3000 dollars to Dorr in the identical bank bills which he had received from him, and he expected the transaction to be cancelled ; but that Dorr refused to cancel it, saying it had better stand till the whole was settled ; that this transaction stands alone, unconnected with any other ; that he could not comprehend the object of Dorr’s offering him the two conditional notes, after he had received back the whole of the consideration money ; that he was not satisfied to have it stand so, as he wanted to sell the land ; that Dorr said he could sell the land as well as Peirce, that the conveyance was never considered to operate as a mortgage, that he had bought the land of Peirce ; that he (Peirce) had tried to effect an acknowledgment of Dorr’s having received back the money with which he held up the idea of his. having bought the land ; and Peirce suggests that the communications, between them on the subject may amount to a mortgage ; that Peirce died January 1, 1828, having made a will, and that letters testamentary were granted to the plaintiff in February ; that on the 19th of April the plaintiff required Dorr to render an account of his trust and to perform the same according to the true meaning and intent thereof, more especially to sell the lands in Boston and apply the proceeds to his debt; objecting however to the allowance of interest after a reasonable time from the original conveyance had elapsed, in which he might have effected sales ; but that he has neglected to do either.
    The prayer of the bill is, that the defendant may be held to render an account of his trust and make such conveyances to the plaintiff as he shall be entitled to have ; and also for general relief.
    To the foregoing bill the defendant demurred, assigning for cause of demurrer, that this Court has no jurisdiction in equity to enforce the specific performance of contracts in writing, except by virtue of St. 1817, c. 87, which applies only to con- ‘ tracts made since the passing of the statute ; that the plaintiff claims the specific performance of a contract which he alleges was made on May 3, 1813 ; and that except that contract, there is nothing set forth in the bill which will entitle the plaintiff to relief in a court of equity.
    S. Hubbard and W. J.
    
    
      Hubbard supported the- demurrer. This is not a case of trust within the meaning of the statute of 1817, c. 87. Black v. Black, 4 Pick. 237.
    
      June llth
    The agreement of May, 1813, sets forth the truth, that the original transaction was an actual bond fide sale. All previous dealings between Dorr and Peirce were merged in that. It was made before the statute of 1817, so that a specific performance cannot be decreed ; but if it had been made since, the Court could not interfere under this bill. There is no allegation of an offer to pay the debt within the two years, and the Court will not compel the defendant to take the risk of the market after that time. The case of Benedict v. Lynch, 1 Johns. Ch. R. 370, shows that in a sale of land, time may make part of the essence of the contract, and that the Court will not help the party in default at the day. The value of these lands has never been equal to the amount of the debt, including the interest. The defendant always has been and still is willing to reconvey, upon payment of his debt and interest according to the terms of the contract of May 3, 1813, but he would not admit that he was guilty of negligence and allow a deduction of interest on that ground, and hence arose this suit.
    The transaction was not a mortgage, the writing not being under seal, nor made at the same time with the deed. But if it were, a reconveyance would not be decreed without a tender of the sum secured.
    The written declaration of Joseph- Peirce, that the conveyance of the lands in Maine was a separate transaction, is of no avail; and it contradicts the written contracts. Moreover, taking his statement to be true, that conveyance was to delay creditors, and shall he allege .his own fraud and claim a reconveyance ? He says too that the 3000 dollars - were returned, and that the lands should therefore have been reconveyed ; but if the transaction was intended to be closed, why did he not pay the interest on that sum ?
    
      Thacher, for the plaintiff.
    The plaintiff does not claim the specific performance of a contract, but the execution of a trust arising under a deed. If there is no trust, we have no case The contract of 1813 cannot be specifically performed, but we are remitted to our original rights ; and we pray for general relief. A trust need not be created by writing ; it is sufficient if it is proved by written evidence. Movan v. Hays, 1 Johns. Ch. R. 342; Forster v. Hale, 3 Ves. 707. The bill alleges an absolute conveyance in 1811 as security, and a repayment of the whole consideration ; there is then a resulting trust. Boyd v. M'Lean, 1 Johns. Ch. R. 586; Lloyd v. Spillet, 2 Aik. 150; Botsford v. Burr, 2 Johns. Ch. R. 405. The instrument of May 1813 is clear evidence of the trust. It contains an assertion which is not true, namely, that the lands had been purchased by the defendant. If the conveyance was in reality absolute, why were the conditional notes given by the defendant, by which a deficit was to be borne by Peirce, and why did the defendant charge a commission for his care ?
    
      June 27th.
    
   Wilde J.

delivered the opinion of the Court. The material facts set forth in the bill being admitted by the demurrer, the question is, whether upon these facts the plaintiff is entitlec to the relief prayed for ; whether the writings and statements set forth in the bill, will admit of the construction contended for by the plaintiff’s counsel.

As to the two conditional notes, no inference can be made from them in favor of the trust set up by the plaintiff. On the contrary, the condition or proviso was evidently inserted for the security of the defendant, and to provide against the contingency of an unfavorable sale, in case the proceeds should fall short of the sums due to the defendant. These notes therefore clearly fail to support the trust set forth in the bill. For as the deficiency of the proceeds of sale is provided for, and no provision is made for paying over the surplus, the presumption would be, if any were to be made, that the surplus was not to be accounted for.

Nor does the defendant’s proposal of December 1811, with the statement of the account between the parties accompanying it, support the trust relied on in the bill. These papers may show that the lands were held upon some trust, or that some trust was intended to be raised ; but what the trust was, or what it was intended to be, does not appear. The proposal was to release to the testator one of the lots in Boston and to hold the residue of the lands as security for the defendant’s balance ; but it does not appear, nor is it averred, that this proposal was accepted ; nor were the accounts then settled. The proposal however, with some modification, was after-wards, in May, 1813, accepted by the testator, and formed the basis of the agreement then made. The notes of hand were then given up and cancelled, and all prior proposals must be considered as waived by that agreement. The accounts between the parties were then settled, and it was agreed that the lands should be held as security for the defendant’s balance. According to the construction of that agreement the most favorable to the plaintiff, it operated in the nature of a mortgage. ' In strictness, however, it was not a mortgage ; and to entitle the plaintiff to a release of the lands, the defendant’s debt should have been paid within the time limited by the agreement. It is unnecessary however to consider this question, as no payment or tender of payment has been made at any time.

With regard to the letter from Joseph Peirce, it must be taken as part of the bill, as it is averred to be true. But it does not support the trust set out in the bill. It shows, it is true, that the loan of 3000 dollars and the conveyance of the lands in Maine were a separate transaction, and not connected with the previous dealings between the parties. In the close of the letter it is intimated, that the conveyance of the lands in Maine might be considered as a mortgage ; but if it were a mortgage, it is clear that the plaintiff would not be entitled to a release of the lands without paying the interest, as well as the principal sum loaned. Besides, whatever were Peirce’s expectations, they could be of no avail after the agreement of May, 1813. It is not intimated in the letter that any subsequent agreement was ever made between the parties ; and it is certainly impossible, under the agreement of 1813, to support the bill in its present form.

Bill dismissed.  