concurring: I concur in the decision of this case and the reasons upon which it is based. I think no other question is presented for decision, and that what is said in regard to the validity of the alleged parol trust is obiter. The question was not passed upon by the judge nor argued' in this Court. "Whether such a trust,' upon the evidence taken as true, can be declared by parol and enforced by the court is not free from doubt. I therefore think that we should not decide it and fore*236close tbe parties, unless fairly presented and an opportunity afforded them for argument. In Shelton v. Shelton, 58 N. C., 292, Chief Justice Pearson thus states the law, as held by this Court:
1. “At common law it was not necessary that a trust should be declared in any particular way; the• declaration could be made by deed or by mere word of mouth. In either case, if the trust could be proved, the chancellor would enforce its execution.
2. “In England, by the seventh section of the Statute of Frauds (29 Car. II), all declarations of trust are required to be ‘manifested and proved’ by some writing, signed by the party, etc.
3. “In this State there is no statute which requires the declaration of a trust to be in writing, and the matter stands as at common law. . '
4. “That the statute of 1819 [Revisal, sec. 976] does not include the declaration of a trust; it is not ‘a contract to sell or convey land.’ [Oases cited in Pell’s Revisal, 976.]
5. “That the rule which excludes parol evidence for the purpose of ‘explaining, altering or adding to a written instrument’ has no application,” because, as said by Pearson, C. J., “the declaration of a trust neither contradicts, explains nor adds to the deed.” Replying to the suggestion to the contrary, he says: “If this position be true, the English statute, in respect to the declaration of trusts, was uncalled for, and the doctrine of verbal declaration of trusts would not have obtained at common law. The truth is, neither the declaration nor the implication of a trust has ever been considered as affected by that rule of evidence. The deed has its full force and effect in passing the absolute title at law, and is not altered, added to or explained by the trust, which is an incident attached to it in equity as affecting the conscience of the party who holds the legal title.”
The language used by the learned Chief Justice has been cited in aUarge number of casés with approval.. Riggs v. Swann, 59 N. C., 118, in which he says: “The objection that the declaration of trust was not in writing, and .was therefore void, is not tenable. There is in this State no statute which requires the declaration of a trust, made at the time the legal, title passes *237to one wbo agrees to bold in trust, accompanying the transmission of the legal title, shall be in writing.” In Ferguson v. Haas, 64 N. C., 773, Mr. Justice Rodman makes a careful examination of the subject (Judge' Pearson being a member of the Court). The decision in Shelton’s case was attacked as “an innovation.” The attack was based upon the suggestion, which appears to have been advanced, that it was held in the opinion that a trust could be declared by a “mere oral declaration,” without any surrounding or sustaining circumstances. Judge Rodman says: “No such point was decided. * * * It is hard to conceive of a case which could be founded on words only, without some corroborating acts and circumstances.” He concludes that the Court “sees no occasion to alter any of the expressions in the case.” In Fry v. Ramseur, 66 N. C., 466, Pearson, C. J., reaffirms the doctrine in Shelton’s case. In Shields v. Whitaker, 82 N. C., 516, Smith, C. J., quotes with unqualified approval the opinion. Holmes v. Holmes, 86 N. C., 205; Smiley v. Pearce, 98 N. C., 185; Holden v. Strickland, 116 N. C., 185; Cobb v. Edwards, 117 N. C., 244; Bank v. Fries, 121 N. C., 241. In Sykes v. Boone, 132 N. C., 199, and Avery v. Stewart, 136 N. C., 426, Mr. Justice Walker reviews the authorities and cites Shelton’s case with approval. In Pittman v. Pittman, 107 N. C., 159, Shepherd, J., discusses the question, and holds that a written agreement, not under seal, made subsequent to the transmission of the title, without any consideration to support it, to hold in trust and convey to the grantor, would not be enforced in equity. He says: “To declare a trust in this case would contravene several other principles which have been firmly established by this Court, one of which is that no parol trust can be proved by subsequent declarations alone.” Citing Smiley v. Pearce, supra. The learned Justice, referring to the contention that a trust could be established in the manner attempted in that case, says: “If this be so, it would be difficult to escape what would seem to be the logical conclusion, that a voluntary trust may be declared by a simple oral declaration, unaccompanied by the transfer of the legal title.” Assuming that the testimony in this record is true, and eliminating any ■question .of the parties having any unlawful purpose.in convey*238ing tbe land, we have this ease: Ebenezer Gaylord, being tbe owner of tbe land, and baying or' apprehending some trouble with bis wife, conveys it to bis brother, without any valuable or other consideration than that tbe grantee would bold it. in trust and convey to him. Ebenezer remains in possession until bis death. It is evident that tbe deed was not to be registered, because several witnesses say that when Ebenezer asked bis brother for it be assured him that it was burned or destroyed. Ebenezer’s wife dies; be marries a second time, and dies; bis brother marries bis widow and thereby gets into possession of tbe land and refuses to convey to bis deceased brother’s children. If tbe declaration of trust is not required to be in writing, and to prove it does not contradict, add to or alter tbe deed, with tbe surrounding and corroborating- circumstances, every one of which sustain tbe contention of tbe plaintiffs, I am unable to see, in tbe light of tbe decisions of this Court, bow we can refuse to grant relief: I seems that tbe language of Judge Pearson, in Clonninger v. Summit, 55 N. C., 513, is peculiarly applicable to defendant’s attitude. “This mean subterfuge, showing that the original purpose of tbe defendant was not to befriend bis neighbor (brother), but to trick him out of bis home, will not avail tbe defendant.”
I am unable to see bow tbe warranty in tbe deed, which is a personal covenant of quiet enjoyment, for tbe breach of which no damage could be recovered, as no purchase money was paid, can estop tbe plaintiffs. Tbe declaration of trust is not inconsistent with or contradictory of any recital or assertion in the deed, which has full operation at law. Decisions of other courts, wherein tbe seventh section of tbe Statute of Frauds has been enacted, are not helpful to us. It will be noted that many of those cited in tbe opinion are discussions of implied or resulting trusts, because no consideration was paid. It is conceded that, by an express provision (eighth section).of tbe statute, implied and resulting trusts are excepted. Tbe effort to bring cases where no consideration is paid by tbe grantee within the saving provisions of that section has given rise to much discussion. Tbe plaintiffs’ case is not affected by it. They rely upon an express trust, affected by tbe seventh section. As said by Judge *239Pearson, if an express trust comes within the parol-evidence rule, there was no occasion for the adoption of the seventh section of the statute. It is not easy to perceive how the introduction of parol evidence to show that at the time of the delivery of a deed a declaration of trust for the grantor was made and accepted by both parties contradicts the deed, whereas, if made under the same circumstances in favor of a third person, it does not do so. In both cases the land is conveyed to the grantor. The additional words, “to his only use and behoof,” adds nothing to the usual form of the habendum. Certainly they do not prevent the engrafting of a parol trust for a third person. I find that in Murphy v. Hubert, 7 Pa. St., 420, Gibson, C. J., held that as the seventh section of the .Statute of Frauds had not been enacted in that State, the Court was not authorized to reject parol evidence of the declaration of a trust made at the time the title passed. He asks, “Why was- the seventh section, with others, omitted? Certainly, to prevent its provisions from becoming the law of the land. And how can we make them the law of the land in the face of such a demonstration of legislative intent?”
Without further discussing the subject, I am of the opinion that a question of so much importance, and concededly not free from difficulty, should not be decided until it is fairly presented as the decisive question in the case. I have no disposition to extend the doctrine of parol trusts, as held by our predecessors. I think that the opinion restricts it in narrower limits than has heretofore been done, and prefer to leave the question as I find it until, after full argument and mature reflection, it becomes our duty to decide it. I have not overlooked the decision in Bonham v. Graig, 80 N. C., 224, and several other cases, which appear to conflict with Shelton’s case. It would seem that the Court regarded the parol agreement in those cases as attempts to attach a condition rather than declare a trust. The distinction is clearly pointed out in Shelton v. Shelton. I do not care to discuss the question of the purpose for which the deed was made, as affecting.the validity of the trust, or, rather, the right of the plaintiffs to come into a court of conscience.
Walker, J., concurred in this opinion.