Davis v. Davis

Gilchrist, J.

This suit is brought to establish a trust, for the separate and sole benefit of the wife. The contract was made nominally with her, but as the law does not recognize any capacity in a married woman to make a contract, and gives to the husband the benefit of promises made to her, the plaintiffs have deemed it material to show that the defendant, in making the promise, knew that it was for her benefit upon the ground that the consideration proceeded from her, and intended it for her benefit, peculiarly and exclusively, although the force and - effect of the writing itself would be otherwise, and would vest in the husband the ordinary and marital rights and interests over and in the contract.

The defendant rpeets the case set up by the plaintiffs by denying that any such consideration as the bill states ever proceeded from the wife, and denying that either of the plaintiffs, except by the bill, ever informed Mm of such equity. '

Then, as to having delivered to the wife the writing containing the promise to convey the land to her, or to pay her $400, named as the consideration, he says that he delivered it as the only consideration he ever gave for the conveyance of the farm which he had received from the husband, and at his request, and for the wife to hold as the consideration of the conveyance; that neither of the plaintiffs ever informed him that they had agreed among themselves, or that they expected that the wife was to have a sole and exclusive interest in the contract, or that the land to be conveyed, or the money to be paid in pursuance of its terms, was to be for her separate use.

The exception which the plaintiffs take is, that the answer does not state whether the defendant received the conveyánce of the land in trust for her separate use, and delivered the writing as evidence or in manifestation of such trust.

It is difficult for the answer of the defendant to be more explicit and full than he has actually made it, unless we require him to state what his particular views and opinions, as to the legal effect of the writing were, at the time he executed’it; or, in other words, to what pai’ticular act or duty his intention was to bind himself, and what particular right he intended to establish in another party, when he executed and delivered the writing-

The answer is full as to what was done, and likewise so far as to deny any notice that the plaintiffs expected or intended any other consequences to follow from the transaction than the ordinary legal consequences. It cannot be material that he should confess what he himself judged, at the time, that those legal results would he; because we think that he would be no more bound by an opinion that Jhe might then have formed, adverse to his present interests, supposing him to have formed one, than he could be permitted to avail himself of one which he should have formed to an opposite effect.

The plaintiff's may establish a trust by implication of law; but, unless they can do this, they must lay hold of some writing for that purpose, and abide by its terms.

We think the answer is, in the particulars excepted to, sufficient.

Exceptions overruled.