The bill states a gross breach of trust committed by the defendant to the injury of one whose helpless condition strongly appeals for him to the protection of the court; and as it has been submitted to us, upon demurrer, without argument, we are at a loss to conceive upon what ground the demurrer has been filed. If, indeed, as is substantially alleged, the defendant has received from the brothers and sisters of the deformed and crippled complainant a conveyance of real estate charged with the duty of comfortably supporting him, a court of equity would be quite regardless of its jurisdiction and of the obligations which it imposes, if it did not endeavor to remedy a fraudulent evasion of such a duty.
The only supposable ground of this demurrer is, that, as it does not appear on the face of the bill whether the trust or agreement of the defendant is in writing or not, the bill is deemed, on that account, to state a case within the inhibition of the statute of frauds. This statute, however, has always been held, at law, to have introduced a new rule of evidence merely, and not to have altered or affected the manner of pleading; 1 Saund. 9 a. (n. 1), 276, (n. 1); and we do not see, upon principle, how any different construction can be put upon it in a court of equity. Upon this ground, it was decided in Cozine v.Graham, 2 Paige Ch. R. 177, that where it did not appear upon the face of the bill, whether an agreement, within the scope of the statute of frauds, was in writing or not, if it was a good agreement by parol at the common law, it could not be objected upon demurrer, that it was not stated in the bill to be in writing; the agreement, if in writing, being, in this manner, well stated in the bill. Although some dicta may be found in the books, as noticed by Chancellor Walworth, in Cozine v.Graham, supra, which appear to warrant a demurrer in such a case, the practice has always been otherwise, and the objection has always been taken by plea or answer, as, upon principle, it ought to be.
It is unnecessary for us, therefore, for the purpose of disposing of this demurrer to consider whether we have any enactment upon our statute book tantamount to the 7th section of the statute of 29 Chas. 2, ch. 3, avoiding parol trusts of lands; and, *Page 235 if we have, whether this bill states facts which enable the court, notwithstanding, to give relief, in order to prevent fraud.
For the reason above given, we are not satisfied that no discovery or proof, called for by the bill, or founded upon its allegations, can make the cause set forth in it a proper subject of equitable cognizance, and must, therefore, overrule this demurrer to it, with costs.