
    Manning v. Pippen.
    
      Bill in Equity for Cancellation of Deed.
    
    1. Verbal promise to make will, as consideration of deed. — A verbal promise to make a will devising land to the promisee, in consideration of his present conveyance of the land to the promisor, is void under the statute of frauds (Code, §§ 1732,1845), and a court of equity will not grant relief based on it.
    2. Vari performance avoiding statute of frauds. — If the purchaser of land, under a verbal contract, is placed in possession, and pays the purchase-money, or a part thereof, the contract is taken out of the statute of frauds (Code, § 1732); but the two facts must concur, and a court of equity can not extend the terms of the statute by dispensing with either. (Ralees v.Pope, 7 Ala. 161, limited to sales of personal property.)
    3. Fraudulent promise to make will. — If a person procures the execution of a conveyance of land by promising to devise the land by will to the grantor, having at the time the intention not to do so, and afterwards dies intestate, the fraud will vitiate the transaction, and a court of equity will grant relief against the conveyance; but the fraud must be established by clear and convincing evidence, and relief must be sought seasonably after the discovery of the fraud; and the subsequent breach of the promise, by failing and refusing to execute such will, is not, of itself, conclusive or sufficient evidence that the promise was made with a fraudulent intent.
    4. Same; allegations as to discovery of fraud. — The bill being filed by the husband, against the heirs at law of his deceased wife, seeking relief against a conveyance of land, which he had executed to her, as alleged, in consideration of her fraudulent promise to devise it to him by will, and alleging that “the fact that it was her intention at the time not to comply with her said promise, and that she was employing a mere stratagem, and the evidence of such intention, did not become known to your orator until he filed his original bill in this cause, though he made repeated and diligent inquiry in reference thereto these averments do not meet the strict requirements of the rule applicable in such cases, because they do not show' how the fraud was discovered, nor why it was not discovered sooner,
    
      5. Same; laches --The lapse oí sixteen years after the alleged promise was made, during which period the wife repeatedly refused to execute herkwill as promised, bars any right to relief against her heirs after her death, even if the averments of the bill were fully and precisely proved.
    Appeal from tbe Chancery Court of Pickens.
    Heard before the Hon. Wst. H. Tayloe.
    The facts of this case are fully stated in the opinion of the court, and in the former report (86 Ala. 357-64), and no further statement is necessary. On final hearing, on pleadings and proof, the chancellor dismissed the bill: and his decree is assigned as error.
    Watts & Son, and M. L. Stansel, for appellant.
    (1.) The promise to make a will is clearly proved. That promise was a valuable consideration, and proof of it was admissible notwithstanding the recitals of the deed. — Manning v. Pip-pen, 86 Ala. 357. (2.) A promise to do a thing by will is not within the statute of frauds. — Bish. Contracts, § 1279 ; Jilson v. Gilbert, 26 Wise. 637. But, if the promise was within the statute, the contract having been fully executed by plaintiff, the defendants can not take advantage of it. When everything is done under a verbal contract for the sale of land, except the payment of the purchase-money, the purchaser can not set up the statute of frauds in avoidance of the contract, or to avoid the payment of the purchase-money. To permit this would allow him to commit a fraud on the seller, which a court of equity will not sanction. Pope v. Rake’s Adrn’r, 7 Ala. 161; Gordon v. Tweedy, 71 Ala. 202; Galley v. Galley, 14Nebr. 174; Browne on Stat. Frauds, § 116, notes; Bishop on Contracts, § 634. (3.) The promise to make a will can not be specifically enforced, of course, but the court can cancel the deed, or decree compensation, and charge it as a lien on the land.
    E. D. Willett, and J. C. Johnston, contra.
    
    (1.) The bill seeks to enforce a parol trust in lands, which is void under the statute. — Code, § 1845; Patton v. Beedier, 62 Ala, 593; Brock v. Brock, 90 Ala. 86; White v. Farley, 81 Ala. 567. (2.) The deed recites a valuable consideration, and its recitals can not be varied by parol proof in the absence of fraud or mistake. — Hubbard v. Allen, 59 Ala. 296; Murphy v. Branch, Bank, 16 Ala. 90; Patton v. Beecher, 62 Ala. 588; Brock v. Brock, 90 Ala. 86. (3.) There is a total absence of proof of fraud in the procurement and execution of the deed, and subsequent fraud, if proved, which is denied, would not invalidate it. (4.) Tbe terms of tbe alleged promise, as proved by tbe different witnesses, are uncertain and contradictory. (5.) Tbe evidence shows that tbe deed was executed by tbe grantor in fraud of bis creditors, and be can bave no relief against it, nor based on it.
   THOEINGTON, J.

Tbe bill in tliis cause was filed by appellant against tbe appellees, as tbe lieirs at law of tbeir mother, Mrs. Mattie E. Manning, and seeks relief from tbe effects of a deed executed by appellant to tbe mother of appellees under tbe following circumstances:

In 1868, appellant, who was without children, intermarried with Mattie 0. Atkinson, a widow with two minor children, John and Minnie F. Atkinson, and during that year conveyed to Jeptba Sterling, as trustee for bis wife, a certain tract of land then owned by him, containing about twelve hundred acres. Tbe consideration recited in tbe deed is, that tbe grantor was justly indebted to bis wife “in tbe sum of two thousand dollars principal, for that amount of money and property received by tbe said David Manning from tbe estate of tbe father of said Martha, which money and property belonged to, and were and are, tbe separate statutory estate of the said Martha under tbe Code of Alabama, and which money and property said David Manning, the husband of said Martha, appropriated and converted to bis own use. In payment and clischarge of said sum, be, tbe said David Manning, has bargained, sold and conveyed,” &c. Tbe deed further recites that it conveys tbe property to Jeptba Sterling, in trust for “tbe sole and separate use, benefit and behoof of tbe said Martha J. Manning, free from any claim or claims whatsoever of him, tbe said David Manning, or bis assigns; and tbe said Martha, wife aforesaid, becomes and is a party to this deed, and as evidence that she accepts tbe property hereby and herein conveyed in full satisfaction and discharge of her said debt against tbe said David Manning, husband aforesaid.”

Tbe appellant claims that, notwithstanding tbe recitals contained in tbe deed of a valuable consideration, of tbe character therein specified, be executed tbe deed as tbe result of bis wife’s urgent importunities, and upon her promise that she would thereupon execute her will by which she would bequeath and devise to him one-third of all her property, including one-thircl of said lands, and tbe remaining two-thirds to her two children, Minnie and John; and that tbe real and moving consideration of tbe deed was this promise on tbe part of bis wife.

The deed was made in 1871, and Mrs. Manning died in 1884, without ever having executed a will. She left surviving her, as her heirs at law, the appellee, Minnie E. Pippen, and the other appellees, who are the children of John Atkinson, he having died before the bill was filed. Appellant, at various times after the execution and delivery of said deed, requested his wife to execute her will pursuant to her said promise, but she declined to do so. After her death, appellees instituted a real action in the nature of ejectment against appellant, who continued in possession of the land after his wife’s death; and this suit was enjoined under the bill in this cause. Demurrers to the bill were sustained in the Chancery Court, and the cause was brought to this court; by appeal, and wras here reversed and remanded. The case is reported in 86 Ala. 357.

In the consideration given the cause by this court on that appeal, it was assumed, on demurrer, that the promise of Mrs. Manning to execute her will as alleged in the bill was in writing. After the reversal of the cause in this court, the defendants filed additional demurrers and answers, which last denied the material allegations of the bill, and among the other defenses setting up specially the statute of frauds. Testimony was taken, and the cause submitted on the pleadings and proof for final decree. The chancellor rendered a decree denying relief to complainant, and dismissing his bill; and from that decree appellant appeals to this court.

The bill and the amendments treat in two different aspects the promise of Mrs. Manning to revest the title to the property in appellant by her will: firsl-, as a mere promise to will the property back to appellant in consideration of the deed, and a breach of. that promise, after condition performed by appellant; second, that the promise was a mere artifice on Mrs. Manning’s part, resorted to by her to procure the execution of the deed by her husband, with the fraudulent intent not to comply with her promise, and. by means whereof she did procure the execution of the deed, and afterwards refused to comply with her promise, until her death rendered such compliance impossible.

We decline consideration of the question urged by counsel for appellees, whether the bill and amendments present two inconsistent and repugnant grounds for relief, or,, in other words, whether the amendment is a departure from the original bill, and makes a new case, for the reason that the conclusion we have reached on the merits of the case renders that question immaterial. '

Section 1845 of tbe Code of 1886 declares: “No trust concerning lands, except sucb as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, except by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereunto in writing.” This section is identical with section 2199 of the Code of 1876, which was elaborately considered by this court in the case of Patton v. Beecher, 62 Ala. 579; and the principle announced in that case has frequently been recognized, and expressly re-affirmed by subsequent decisions of this court. That decision, among other things, clearly affirms that the mere parol promise by the grantee in a deed, or a devisee in a will, that he wiil hold for the use of, and reconvey to the grantor or devisor, on request, or on a specified contingency, is a trust which the statute requires to be created or declared in writing. That such a promise would be inoperative under the statute of frauds, is too well settled now to be questioned.

In 2 Pom. Eq. Juris. § 1054, it is said: “There are a few cases which seem to hold that a trust will arise, under these circumstances, from a mere verbal promise of the devisee or legatee to hold the property for the benefit of another person. This position, however, is clearly opposed to settled principle.” The case of Barrell v. Hanrick, 42 Ala. 60, was one of the few cases of this class referred to by the above named author; but the doctrine it asserted was expressly repudiated by this court in Patton v. Beecher, supra, and the case has ceased to be of authority in this State on the question under consideration. — Patton v. Beecher, supra; Manning v. Pippen, 86 Ala. 357; Brock v. Brock, 90 Ala. 86.

To meet the plea of the statute of frauds, appellant invokes the principle, as stated in brief of counsel, that “When everything is done under a verbal contract for the sale of lands, except the payment of money, the purchaser can not set up the statute of frauds to avoid the purchase, or to avoid the payment of the purchase-money;” and in support thereof the case of Rakes v. Pope, 7 Ala. 161, and decisions of other States to the same effect, are cited.

The doctrine here invoked by appellant’s counsel is applicable to sales of goods or chattels under a verbal promise not to be performed within one year, and where the property has been delivered under t'he promise; and it may also have application to sales of land in jurisdictions where there is no statute, such as in this State, prescribing in specific terms what shall constitute such a part performance of tbe verbal contract as will take tbe case without tbe operation of tbe statute of frauds.

The decision in tbe case of Rakes v. Pope, cited by appellant’s counsel, is predicated upon tbe sale of a horse in October, 1837, upon tbe promise of the buyer to pay tbe seller $1,000 on December 25,1837, $2,000 on December 25, 1838, and $2,000 on December 25,1839. Tbe contract was verbal, no note or memorandum being made and signed. Tbe horse was delivered at tbe time of the sale, and an action being-brought by tbe owner to recover an installment of tbe purchase-money, which, by tbe terms of tbe contract, was not to be paid within twelve months from tbe sale, this court, reversing tbe ruling of tbe court below, held that tbe delivery of tbe horse by tbe seller relieved the case from the influence of tbe statute. There is nothing in this case, or in tbe other cases cited by counsel, that furnishes a rule of decision for tbe case at bar. Indeed, to extend this principle to verbal sales of lands, would be in direct contravention of the statute of this State, which declares void “every contract for tbe sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the pur chase-money or a portion thereof, he 'paid, and the purchaser he put in possession of the land hy the seller.”-Code, 1886, § 1732, subd. 5.

Tbe words above italicized create tbe exception of tbe only parol contract for tbe lease or sale of lands which can be withdrawn from tbe general words of tbe statute; and in order to bring a case Avithin tbe exception, two facts must concur — tbe payment of tbe purchase-money, or a part thereof, and the placing of tbe purchaser in possession; and these trvo facts must be in pursuance of tbe contract. Neither tbe possession Avithout payment of tbe whole or a part of tbe purchase-money, nor tbe payment of tbe purchase-money or part thereof AAÚtbout tbe letting into possession, will meet tbe requirements of tbe statute. — Heflin v. Milton, 69 Ala. 354.

We proceed now to consider that phase of tbe case presented by tbe amendment to tbe bill, in which it is set up as a distinct ground of relief that tbe execution and delivery of tbe deed by appellant to bis wife was procured by her artifice and deception; that she induced appellant to make tbe deed to her by promising to make her will, at once, bequeathing to him one-third of all her property, including one-third of tbe lands conveyed to her by tbe deed, which promise she, at tbe time of making it, bad no intention of performing. This aspect of tlie case depends on different principles from those we have discussed.

It may be said generally, that whenever the legal title to property, real or personal, is obtained under circumstances amounting to actual fraud, or which render it unconscien-tious for the holder of the legal title to retain the beneficial interest, equity impresses a constructive trust on the property so acquired, in favor of the one who has been thus deprived of his property, and who is truly and equitably entitled to the same. In such cases, equity has jurisdiction to follow the property in the hands of the original wrong-doer, or in the hands of any subsequent holder, except a purchaser who has acquired it in good faith and without notice. Equity fixes upon such wrong-doer the character or status of a trustee ex maleficio, or ex clelicto, and he may be held liable as such whenever necessary for obtaining complete justice, notwithstanding the law may also give a remedy in damages against him.

In 2 Pom. Eq. Juris. § 1055, that author says: “A second well settled and even common form of trusts ex maleficio occurs, wherever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specific purpose — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like — and having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained, is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.” And in section 1Ó56 of the same work it is said: “The foregoing cases should be carefully distingushed from those in which there is a mere verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be abrogated. There must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated.” The doctrine of the text is fully supported by the decisions of this court. — Patton v. Beecher, 62 Ala. 579; White v. Farley, 81 Ala. 563; Manning v. Pippen, 86 Ala. 357; Brock v. Brock, 90 Ala. 86.

Applying tbe principles above announced to tbe facts of tbis case, we must bold tbat appellant is not entitled to any relief based on tbe mere verbal promise of Mrs. Manning; tbat sucb promise is void under tbe statute of frauds, and tbat it bas not been executed witbin tbe meaning of tbe ex•ception to tbe statute.

Whether or not relief can be afforded upon tbe other theory of tbe case — viz., tbat which imputes to Mrs. Manning tbe fraudulent purpose of procuring from her husband tbe execution of tbe deed by means of her verbal promise to will one-tbird of tbe property back to him, which promise she bad no intention, at the time of making it, to perform-— requires a careful review of tbe pleadings and testimony; and tbe inquiry must be pursued subject to tbe universally accepted rule, that a parol trust will not be engrafted on a legal title, evidenced by an instrument of conveyance absolute on its face, except with tbe greatest caution, and where tbe fraud necessary to give rise to tbe trust is established by clear and convincing-proof; and, it may be added, when relief is seasonably sought after discovery of tbe fraud.

In James v. James, 55 Ala. 534, it was said by tbis court: “But by no mere general averment of ignorance can a party account for long delay and acquiescence. By distinct aver-ments be must show why be was so long ignorant, and acquit himself of all knowledge of facts which would put him on inquiry. He must show bow and when lie first came to a knowledge of tbe facts, or tbe court may justly refuse to consider bis cause on bis own showing, without inquiring whether there is a demurrer or formal plea of tbe statute of limitations contained in tbe answer.”

Tbe averment in tbe bill is, tbat “tbe said Mattie C., at tbe time she made said promise, well knew it was not her intention to make sucb will, but she resorted to tbis promise as artifice to induce your orator to make said deed, with no intention of complying therewith; and tbe fact tbat it was her intention at tbe time not to comply with her said promise to make sucb will, and tbat she was employing a mere stratagem, and tbe evidence of such intention, did not become known to your orator until be filed bis original bill in tbis cause, though be made repeated and diligent inquiry in reference thereto, never suspecting fraud.”

These averments of tbe bill do not meet tbe strict requirements of tbe rule — they fail to show bow tbe discovery of tbe alleged deception was made; and for tbis reason, tbe court bas no means of determining tbat sucb discovery might not have been made sooner.

The bill in tbis case was not filed nntil abont nineteen years after tbe execution of tbe deed. Mrs. Manning lived about sixteen years after tbe transaction, and tbe proof shows tbat during ber lifetime appellant often requested ber to execute ber will according to ber promise, and tbat sbe invariably refused to do so. There is absolutely nothing in tbe testimony to show tbat appellant discovered any fact or facts bearing upon or illustrating Mrs. Manning’s original design in making the promise, of wbich be was not informed, or might not have been informed, shortly after be made tbe deed. In tbis respect, tbe case is presented differently now from what it was on the former appeal. Then, tbe bill contained no averment of tbe time when, according to tbe promise of Mrs. Manning, sbe was to execute ber will in favor of appellant, and, in tbe absence of such an averment, tbis court held sbe bad' ber life-time in which to do so, and tbat there was no actionable breach of ber promise until sbe died without having complied with tbe promise. Now, tbe allegation in tbe bill, as amended, is, tbat tbe deed was made on tbe promise of Mrs. Manning tbat sbe would, in consideration of tbe deed, “at once make and execute ber said will,” <fec.

According to tbe testimony, appellant, in a very short time after be made tbe deed, from time to time, requested bis wife to execute ber will pursuant to ber promise, and sbe uniformly declined to do so. If, as claimed by tbe appellant, tbe promise was made by tbe wife as a mere artifice, or fraudulent scheme, to procure tbe deed, and without any intention of executing the will, and tbat tbe refusal of the wife to comply is evidence of ber original purpose to practice fraud upon tbe husband; then appellant was as fully informed of such fraud on ber part by ber first refusal to execute tbe will, as be was at tbe end of tbe nineteen years when be brought bis suit; for, after a careful examination of tbe testimony, we find nothing tending to support tbis claim of appellant, except tbe mere refusal of Mrs. Manning to comply with ber promise. At all events, there is no fact or circumstance touching tbat subject of which appellant was not informed, or might not have known, shortly after making tbe deed, tío far as tbe testimony shows to tbe contrary, and according to tbe averments of tbe amendment to bis bill tbat tbe will was to be executed at once, tbe court is unable to perceive why tbis bill might not have been filed many years ago, while Mrs. Manning was in life, and when all tbe circumstances were fresh in tbe minds of tbe witnesses,

We are not to be -understood, however, as intimating that tbe mere subsequent refusal of Mrs. Manning to comply with her promise would, of itself, furnish sufficient evidence of a formed purpose or design on her part, at the time of the execution of the deed by her husband, to employ the promise as a stratagem by which she should secure the deed with no intention of complying with the promise. ■ The law is to the contrary. It is clear, under the authorities, that the mere breach of a verbal promise of this kind, standing alone, although it may be a moral wrong, is not sufficient to establish that fraud in procuring the title which would render the grantee, or devisee, a trustee ex malificio. “The true rule seems to be, that there must have been ah original misrepresentation, by means of which the legal title was obtained; and an original intention to circumvent,, and get a better'bargain, by the confidence reposed.” — Browne on Stat. of Frauds, (3d ed.) § 94. Such breach is a circumstance to be considered in connection with the other facts of the case going to prove fraud; but, standing alone, it can not be regarded as conclusive of the existence of evil or fraudulent intent at the time of the promise. — Brock v. Brock, 90 Ala. 86. "

While there is an absence of proof, other than the mere subsequent breach by Mrs. Manning of her promise, to show that, at the time of making the promise, she did not intend to fulfill it, there is some testimony which, while not conclusive of that question, tends to show that it was her intention at that time to perform such promise. The witness Boone, who was the officer before whom the deed .was. signed and acknowledged, swears that on the day the deed was signed,, and immediately thereafter, Mrs. Manning-followed witness to the entry, or door of the house where the signing occurred, and, after explaining to him the object-of the deed, she requested him to write her will, which, he-consented to do at any time. There were several other persons present, but this was said to witness apart bom the others, without any effort to attract their attention thereto, and, so far as appears to the contrary, the request was but the expression of her real desire or purpose, and not a cunT ning attempt to manufacture testimony for herself. Furthermore, giving full weight to all the testimony, it is far from clear that appellant made the deed relying solely on the promise of Mrs. Manning as an inducement thereto ; there is testimony of strong probative force that the deed was not made on the faith of the promise, but on other considerations, and that the'promise was only an incident to the main transaction. • • ; >■

The solemn recitals in tbe deed of a valuable consideration, [the particularity witli wbicli Such consideration' is described, as shown by the statement of facts hereinabove set forth, the acknowledgment required in the-deed of Mrs.’ Manning that the conveyance was ‘accepted by her' in full satisfaction of the debt described in the deed,- the' facts in proof showing that appellant had previously received from the estate of Mrs. Manning’s father, as her' Share of such estate, a sum of money which approximated, if it did-'not equal, the amount expressed as tlie Consideration of the deed, and the further fact, as also shown by the proof, that appellant owed debts, at the time of making' the deed, one of which, at least, was in judgment, present an array of concurring facts and circumstances which render it equally, if not more probable, that the deed was based on other considerations, and not on the faith of Mrs: Manning’s promise. We do not overlook the fact- that appellant himself'testifies, that he turned over- to his wife the money he received from her father’s' estatebut this part of his testimony was objected-to,'and the objection was well taken. Section 2765 of the -Code rendered' him incompetent to testify to that fact, and appellant made' no effort to prove -it otherwise.

“It is a general, if not universal rule, that a plaintiff in an action at law, or a complainant in a suit in equity, assumes' the burden of proving every affirmative fact essential to* his right of recovery. No material fact is presumed ; and the rule is general, in courts of law and in equity, that a party relying upon fraud, must aver it with certainty, and must prove it as averred.” — Thames v. Rembert’s Adm’r, 62 Ala. 567. It can not be affirmed of this case that appellant has brought himself within the -scope of the rule, either in the matter of averment or proof.

The want of correspondence between the averments of the bill and appellant’s proof in still another respect is fatal to any relief the court could afford him, according to the rule laid down by this court on the former appeal. It was-there held that the court of chancery being without power to compel the execution of a will, specific performance of the agreement could not be enforced, but that equity would charge the land with a trust, in the nature of unpaid purchase-money, for the indemnification of the vendor, to the extent he has suffered from the breach of Mrs. Manning’s' promise. The averment in the bill is that Mrs. Manning promised to devise to appellant one-tbird of all ber property, including one-tbird of tbe land in controversy. The testimony of tbe witness Boone is that Mrs. Manning promised to devise to appellant all tbe lands conveyed by tbe deed, to be held by him for life, with remainder to Mrs. Manning’s children. Tbe witness Ide Hinton, in answer to tbe direct interrogatories, testifies that Mrs. Manning’s promise was “to make a will in favor of appellant, giving him back tbe lands if be outlived her;” while in answer to tbe cross-interrogatories be testifies that one-half of tbe land was to be devised to appellant by Mrs. Manning, and tbe other half to ber two children. The witness Alex. Hinton testifies that tbe promise was to devise live, entire land to appellant, without any condition or limitation; and to tbe same effect is tbe testimony of some of tbe other witnesses. These are all witnesses examined at tbe instance of appellant, and their depositions were offered in evidence by him.

It is impossible for tbe court to determine from tbe testimony which of these witnesses states tbe terms of tbe agreement correctly, and consequently it can not be ascertained to what extent appellant has suffered from tbe alleged breach of Mrs. Manning’s promise, nor what sum would afford “indemnification for tbe vendor.” With tbe testimony in this plight, tbe court can not undertake to fix tbe measure of relief to be afforded appellant, even if in other respects tbe facts and circumstances warranted relief.

Tbe decree of tbe chancellor is affirmed.  