The opinion of the Court, Shepley J. concurring in the result only, was drawn up by
Whitman C. J.The plaintiff’s bill is founded upon a supposed trust in the defendant, which he has not executed. We must first ascertain whether a trust, such as is cognizable, under our statutes, by this Court, in fact existed between the parties. If not, the bill must be dismissed. The plaintiff, first, sets forth certain transactions which took place between himself and the defendant; and then avers, that they consti*280tuted a trust. He then sets forth a writing, of a subsequent date, in the form of a letter from the defendant, which he avers amounted to a declaration of trust on his part in reference to those former transactions. To the latter, as it would seem, from the abstract with which we have been furnished, the defendant demurs specially; but neither answers, pleads or demurs to the former. Yet the cause has, in technical phrase, been set down for argument, upon bill and demurrer. This is clearly an irregularity. The first part of the statement, which the plaintiff avers amounted to a trust, unexecuted on the part of the defendant, should have been noticed by answer, plea or demurrer. We should be warranted in concluding, that the defendant, by such course of proceeding, intended to admit those allegations, which he has not seen fit to traverse : or, in overruling the demurrer.
But the parties have proceeded in their arguments, without eonfiuing themselves at all to the point, which it would seem, they have seen fit particularly to put in issue, to the consideration of the case upon its general merits, as if the whole had been properly put in issue. Upon their having so done it may not be- inexpedient for the Court, in the hope that an end may be put to further litigation, manifestly destined to be fruitless in the end, to suggest the impressions made upon our minds, in regard to the condition of the suit.
Trusts, properly so called, do not result merely from a breach of contract, the remedy in which cases is to be sought for by a suit at common law for damages; nor do they embrace cases of conditional contracts of sale. In such cases it is for the person, on whom the performance of the condition rests, to be careful that no delinquency takes place on his part. If he fails to do so, without fault on the other side hindering him therein, he is without remedy; unless it be in some matter not of the essence of the contract, although he may have proceeded therein nearly to its completion. Equity cannot aid him to compel the other party to perfect the sale upon terms other than those agreed upon. He cannot in any sense of the word, be held to be a trustee so long as he is not in fault.
*281In the case presented, the defendant was answerable, only, upon his contract, according to its terms. His contract is in writing. The Court has no power to vary its terms. His stipulation was, that, if the plaintiff paid certain notes of hand, as they might become due, lie would convey a certain estate to the wife of the plaintiff. The bill admits, that the plaintiff did not pay the last of the notes, but that that one was paid by the defendant. Here then there was a breach of the condition, which at law, certainly, absolved the defendant from his obligation to make the conveyance.
But the plaintiff avers, that, at the time of the payment of that note, the defendant had, and ever since has had, “in the judgment and belief of the plaintiff,” funds belonging to him to a greater or equal amount; but that, the defendant having assumed other liabilities for the plaintiff, he did not demand the execution of the supposed trust. It is, however, no where averred, that such funds were in the defendant’s hands for the purpose of paying said note, nor of what they might or could have consisted. On the other hand, if there were any such funds in the defendant’s hands, according to the plaintiff’s own showing, they were suffered to remain there for a purpose other than for the payment of the note. If indeed the plaintiff had funds in the defendant’s hands for the purpose of paying the note, it would have been a virtual performance of the condition ; and by instituting a process in equity, in conjunction with his wife, to compel a specific performance of the contract, the defendant might be compelled to make the conveyance. But such facts would not have formed a case, authorizing the Court to take cognizance of it, as a trust. The refusal to convey would be but a breach of an express contract.
As to the letter of the defendant, before referred to, it cannot be regarded as a declaration of trust. It contains no admission, that the defendant holds the estate in trust, properly so called. The admission, at the utmost, is, only, that he holds it as security; with an intimation, merely, that if he can be paid what was due him from the plaintiff, and be cleared from the liabilities he was under for him, within any reasonable *282time, he shall be willing to convey it as may be desired. This might, perhaps, be available to the plaintiff on a bill for specific performance, by way of showing a waiver on account of the want of punctuality of performance on the part of the plaintiff ; but cannot amount to an admission of holding the estate in trust, in legal contemplation. To constitute a declaration of trust it should be such as that the party making it must be believed to have intended it as such. Loose and inadvertent declarations are not sufficient for the purpose. Steere v. Steere, 5 Johns. C. R. 1.
There is a statement in the bill concerning a verdict, which has been returned in a suit instituted by the plaintiff against the defendant, on an account, from which it is inferable, that much, if not all of the controversy between the parties, has, at the instance of the plaintiff, been fully litigated at law; and that the plaintiff was there found indebted to the defendant. If such were the case, there can be no re-examination thereof in equity.
But the plaintiff in his bill prays, that the Court would enjoin upon the defendant to consent to a new trial in the action at law, and that the defendant may be compelled to withdraw certain items in his account in set-off, viz. for the rent of the premises in question. This request is unprecedented and novel. It is that this Court, sitting as a court of equity, should compel a defendant to consent to the new trial of an action decided in the same Court, at law, when it has power at law to grant new trials at discretion, whenever it shall appear that, otherwise, injustice will be done. The bare statement of such a proposition cannot fail to make the impropriety of it manifest. If the plaintiff has attempted at common law to obtain a new trial, and has failed, he is without remedy in equity; if he has not, then, that appropriate course is open to him. In either case he cannot be relieved from the effect of that decision under this bill.
On the whole, it is clear, that this bill should be dismissed with costs for the defendant.