The judgment appealed from in this action has adjudged that a certain deed dated January 13,1871, executed by the plaintiff to the defendant, was not an absolute conveyance of the land therein described, but that the same was accepted and received by the defendant in trust for the plaintiff, and for his use and benefit. It further adjudged that the plaintiff and defendant were tenants in common of said premises in equal proportions, and that the defendant should, within five days after the entry of the judgment, convey to the plaintiff an equal undivided one-half of the premises described in the complaint, and that she should forthwith account to the plaintiff for all rents and income received by her from said property. it awarded other relief, which is not necessary to be stated or referred to.
*391The facts upon which the judgment is based, as they have been determined by the trial court, are as follows: Prior to January 13, 1871, the plaintiff and defendant, who are brother and sister, were tenants in common of the real estate described in the complaint. On that day, by a bargain and sale deed, expressing a consideration of one dollar, the plaintiff conveyed his interest in the land, consisting of an undivided one-half thereof, to the defendant. The plaintiff’s testimony as to the transaction which resulted in the execution and delivery of the deed was, in substance, that, after the title was taken in both their names, he and the defendant entered into possession. Shortly thereafter the defendant said to him that it was not necessary to have both names in the deed; that one was sufficient, and he said he was satisfied to have the property put in her name, so long as he got his share; that she said he would get his share, and he accordingly went to a lawyer’s office with defendant, and executed the deed; and that he understood that his title was the same after as before the conveyance, and that it did not affect his ownership at all. The court found the facts to be that the deed was signed by the plaintiff, and delivered to and accepted by defendant, upon the distinct agreement between the plaintiff and defendant that it would in no way affect or destroy plaintiff’s interest in the property,, and that the deed should not be construed as vesting the title absolutely in the defendant, but that she was to hold the same for the joint use and benefit of the parties. The appellant has discussed upon his brief very fully the proposition that neither the allegations of the complaint nor the testimony of the plaintiff was sufficient to establish such a fraud or misrepresentation as would justify a court of equity in setting aside the conveyance. But that element is eliminated from the case by the concession of the respondent in his first point, that “no fraud is charged against the defendant in the procuring of respondent’s signature to the deed.” Neither does the case present those elements usual in constructive or implied frauds. There was no fiduciary relation between the parties. They did not occupy relations to each other where the defendant naturally exercised any influence over the plaintiff. She owed no duty to him whatever. . The parties were laboring people, of little education or information. The court has found as a fact that the defendant could neither read nor write, but that is not found to be the fact with reference to the plaintiff. The evidence would not permit the conclusion that the defendant had overreached the plaintiff, and taken any undue advantage of him, so as to charge her as a trustee ex maleficio, and impress upon the land a trust by reason of constructive fraud. The plaintiff, at the time of the execution of the deed, was about 42 years of age, and there is nothing in the evidence to indicate that he was not as fully informed as to his rights and fully as able to protect them as the defendant. The case does not present a mutual mistake or misapprehension of the respective rights of the parties. The plaintiff understood the transaction perfectly. He intended to convey his interest in the land to the defendant, and he relied for Ms protection upon the verbal agreement to hold it in trust for Mm.
*392Such being the case presented, the judgment cannot be sustained. The statute of frauds (2 Rev. St. 134, § 6), provided that “no estate or interest in lands, * * * nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created unless by apt or operation of law or by a deed or conveyance in writing subscribed by the party, creating, granting, assigning, surrendering or declaring the same or by his lawful agent thereunto authorized by writing.” Section 7 provides that the preceding section shall not be construed “to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.” Under this statute, a trust may be proved by any writing subscribed by the trustee, but it cannot be proven by parol. The reported cases where it has been attempted to establish the trust by parol evidence are numerous, but the decisions are uniform that the statute cannot thus be set aside. Cook v. Barr, 44 N. Y. 156; Levy v. Brush, 45 N. Y. 589; Wheeler v. Reynolds, 66 N. Y. 227; Hutchins v. Hutchins, 98 N. Y. 56; Hurst v. Harper, 14 Hun, 280; Hubbard v. Sharp, 11 N. Y. St. Rep. 802; Bauman v. Holzhausen, 26 Hun, 505; Gould v. Gould, 51 Hun, 9, 3 N. Y. Supp. 608. The statute excepts from its operation trusts arising “by implication or operation of law.” Without referring to adjudged cases for the meaning of these words, it may be said, in a general way, that, aside from resulting trusts and trusts declared pursuant to settled rules of equity applied to the presumed intention of parties, the term has reference to trusts ex maleficio, where the court proceeds upon the proof of fraud, and enforces agreements notwithstanding the statute. But a mere breach of an oral agreement to convey an interest in land is not such a fraud as will authorize the court to interfere. Wood v. Babe, 96 ÍT. Y. 414. The testimony of the plaintiff may be construed to create a parol trust in the land for his benefit, or a parol agreement to reconvey the land to him at his request. In either view, the contract, not being in writing, was within the statute of frauds, and void. The statute of frauds was not specifically pleaded as a defense. The answer, however, alleged that defendant had an absolute title to the land under the deed from the plaintiff, and that the facts set forth in the complaint did not constitute a cause of action, and upon the trial, before any testimony was given, the defendant moved for judgment upon the pleadings. The point we have considered, and upon which our decision rests, is sufficiently presented by the exception to the denial of that motion. The judgment must be reversed, and there should be a new trial.