By the Court, Allen, J.
The evidence relied upon to establish a trust in this case, if admissible at all, is very slight, and entirely insufficient for that purpose.
I. The transaction is susceptible of a very easy and satisfactory explanation without reference to a purchase of the premises by the defendant, or the creation of a trust for the benefit of the plaintiff of the character of that set up in the bill. The plaintiff had but a very short period before received the title to the property from the defendant, his father, by way of advancement, and after an experiment of some three or four years, found himself embarrassed to that extent that he deemed it necessary to abandon the property and his residence; and it was very natural, as it was highly proper, that he should reconvey so much of the property as he had not squandered, and of which he had proved himself so improvident a manager, to the defendant from whose bounty he had received it. The consideration was ample as between the parties to the deed, and of a character which commends itself to the favor of this court. The presumption [103]*103that such was the character of the transaction- (I speak now without reference to the testimony of Ely and Webb) is strengthened by the fact that without any interview with the defendant, and of his own volition, the plaintiff executed, acknowledged, and delivered to the clerk of Herkimer county for record, and for the use of his father, a deed of the premises, unconditional in its terms and without any condition annexed to its delivery. Its delivery to the clerk of the county for the use of the defendant was a perfect delivery by the plaintiff; and upon acceptance by the defendant the deed took effect from the time of such delivery. (Elsey v. Metcalf, 1 Denio, 323.)
II. The evidence of Ely, which is relied upon to rebut the presumption arising out of the relation of the parties and their situation and history in respect to the property in question, is hable to the remarks; (1.) That it is the statement of a conversation in which the precise words used, or at least words of the very same import, are very material to a right understanding of the case made over twelve years after the conversation took place; and it would be wonderful indeed if the witness has recollected the language used upon that occasion, so that he can convey at this time the same idea which the parties then designed to convey by their language. • And if his testimony was positive, full, direct and certain, a court should hesitate long, even if no statutory provision stood in the way, before giving effect to it, in opposition to the plain tenor of the deed of the party, and which has been acquiesced in for twelve years. It would not be discreet to make a decree upon evidence of this unsatisfactory character. (2.) The message delivered to him for the defendant was after the deed had been delivered,to the clerk for the defendant. It was not simultaneous with such delivery, and a part of the same transaction: neither was the witness constituted the agent of the plaintiff, for any purpose. The assent or dissent of the father to any suggestions or conditions of the plaintiff were not to be communicated to the latter, and were not to affect the validity of the deed or the conduct of the plaintiff, tending most strongly to show that the conveyance to the defendant was a mere return of the bounty the plaintiff had be[104]*104fore received from his father. (3.) The message now said by the witness to have been delivered to him by the plaintiff, for the defendant, was not to the effect that the property had been conveyed to the latter upon any trust, or upon any conditions, but was merely a notice of the fact that a conveyance had been executed and delivered, leaving the conveyance to speak for itself, and a request in the nature of an appeal to the future bounty of the father, to let him have what, if any thing, should be left after the payment of the debts, in such form as the defendant should see fit—no provision or condition that in any event any part of the specific property should be reconveyed to the grantor. The conveyance was intended to be, as it was, absolute. (4.) There is no evidence that that part of the message relating to the payment to the plaintiff of the avails of any part of the property was ever delivered to the defendant. The witness says he told the defendant the 11 news,” that is, that his son had conveyed the property to him, the defendant, and had absconded. (5.) The credit to be given to the testimony of this witness is greatly diminished by the evidence of Belknap, showing that soon after the transaction, and when we may suppose his recollection was distinct, he gave an entirely different version of the affair, and one entirely inconsistent with the creation or existence of a trust. It is true the evidence of Belknap does not establish, or tend to establish, the true character of the transaction; but it does establish the fact that the testimony of Ely can not safely be relied upon at this time to effect the transfer of a valuable property from the defendant to the plaintiff. (6.) The evidence of Webb, relied upon to corroborate and confirm the present recollection of Ely, is unworthy of consideration. The interview with the defendant to which he was called to testify was got up and arranged eleven years after the principal transaction, with a view to draw from the old gentleman, the defendant, who was unsuspicious of the design, a confession, or some declaration, or some assent express or implied to some fact which might be construed into an admission of the existence of some trust; and was doubtless managed in a manner calculated to bring about the desired result. And it would have been [105]*105wonderful indeed if they had not found something which they were willing to construe into an admission of the claim of the plaintiff. The confessions and declarations of parties are always received with distrust, and should be closely scrutinized; but when got up as these were, from an unsuspecting old man somewhat deaf, and drawn out by a designing son and noted by a willing if not an anxious witness, they should have no influence at all in a doubtful case; and it is only in very doubtful cases that they would be resorted to. The acts of the old gentleman upon the occasion give the lie to every presumption sought to be drawn from his declarations that he then supposed that the relation of trustee and cestui que trust existed between him and his son in respect to the property in question; for he distinctly refused to acknowledge any claim on the part of the son. The conduct and manner of the witness while under examination, and the pertinacity with which he refused to speak of the interview except from his memorandum, tend still further to detract from the credit to be given to his testimony. The other witnesses present at the same interview give a different version of the conversation and declarations of the parties, and I must say apparently somewhat more natural. The conversation, as related by Webb, is certainly very formal, forced and unnatural, and I may add improbable.
III. But if the plaintiff has succeeded in establishing every fact which he claims to have established by the evidence of Ely and Webb, still he has failed to entitle himself to a decree in his favor. (1.) The evidence is incompetent to engraft upon the deed any condition, limitation, or reservation inconsistent with its terms. (Webb v. Rice, 1 Hill, 606; S. C. in error, 6 Id. 219. Swick v. Sears, 1 Id. 17.) (2.) Parol evidence was inadmissible to establish a trust.
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By the Court, Allen, J.
The evidence relied upon to establish a trust in this case, if admissible at all, is very slight, and entirely insufficient for that purpose.
I. The transaction is susceptible of a very easy and satisfactory explanation without reference to a purchase of the premises by the defendant, or the creation of a trust for the benefit of the plaintiff of the character of that set up in the bill. The plaintiff had but a very short period before received the title to the property from the defendant, his father, by way of advancement, and after an experiment of some three or four years, found himself embarrassed to that extent that he deemed it necessary to abandon the property and his residence; and it was very natural, as it was highly proper, that he should reconvey so much of the property as he had not squandered, and of which he had proved himself so improvident a manager, to the defendant from whose bounty he had received it. The consideration was ample as between the parties to the deed, and of a character which commends itself to the favor of this court. The presumption [103]*103that such was the character of the transaction- (I speak now without reference to the testimony of Ely and Webb) is strengthened by the fact that without any interview with the defendant, and of his own volition, the plaintiff executed, acknowledged, and delivered to the clerk of Herkimer county for record, and for the use of his father, a deed of the premises, unconditional in its terms and without any condition annexed to its delivery. Its delivery to the clerk of the county for the use of the defendant was a perfect delivery by the plaintiff; and upon acceptance by the defendant the deed took effect from the time of such delivery. (Elsey v. Metcalf, 1 Denio, 323.)
II. The evidence of Ely, which is relied upon to rebut the presumption arising out of the relation of the parties and their situation and history in respect to the property in question, is hable to the remarks; (1.) That it is the statement of a conversation in which the precise words used, or at least words of the very same import, are very material to a right understanding of the case made over twelve years after the conversation took place; and it would be wonderful indeed if the witness has recollected the language used upon that occasion, so that he can convey at this time the same idea which the parties then designed to convey by their language. • And if his testimony was positive, full, direct and certain, a court should hesitate long, even if no statutory provision stood in the way, before giving effect to it, in opposition to the plain tenor of the deed of the party, and which has been acquiesced in for twelve years. It would not be discreet to make a decree upon evidence of this unsatisfactory character. (2.) The message delivered to him for the defendant was after the deed had been delivered,to the clerk for the defendant. It was not simultaneous with such delivery, and a part of the same transaction: neither was the witness constituted the agent of the plaintiff, for any purpose. The assent or dissent of the father to any suggestions or conditions of the plaintiff were not to be communicated to the latter, and were not to affect the validity of the deed or the conduct of the plaintiff, tending most strongly to show that the conveyance to the defendant was a mere return of the bounty the plaintiff had be[104]*104fore received from his father. (3.) The message now said by the witness to have been delivered to him by the plaintiff, for the defendant, was not to the effect that the property had been conveyed to the latter upon any trust, or upon any conditions, but was merely a notice of the fact that a conveyance had been executed and delivered, leaving the conveyance to speak for itself, and a request in the nature of an appeal to the future bounty of the father, to let him have what, if any thing, should be left after the payment of the debts, in such form as the defendant should see fit—no provision or condition that in any event any part of the specific property should be reconveyed to the grantor. The conveyance was intended to be, as it was, absolute. (4.) There is no evidence that that part of the message relating to the payment to the plaintiff of the avails of any part of the property was ever delivered to the defendant. The witness says he told the defendant the 11 news,” that is, that his son had conveyed the property to him, the defendant, and had absconded. (5.) The credit to be given to the testimony of this witness is greatly diminished by the evidence of Belknap, showing that soon after the transaction, and when we may suppose his recollection was distinct, he gave an entirely different version of the affair, and one entirely inconsistent with the creation or existence of a trust. It is true the evidence of Belknap does not establish, or tend to establish, the true character of the transaction; but it does establish the fact that the testimony of Ely can not safely be relied upon at this time to effect the transfer of a valuable property from the defendant to the plaintiff. (6.) The evidence of Webb, relied upon to corroborate and confirm the present recollection of Ely, is unworthy of consideration. The interview with the defendant to which he was called to testify was got up and arranged eleven years after the principal transaction, with a view to draw from the old gentleman, the defendant, who was unsuspicious of the design, a confession, or some declaration, or some assent express or implied to some fact which might be construed into an admission of the existence of some trust; and was doubtless managed in a manner calculated to bring about the desired result. And it would have been [105]*105wonderful indeed if they had not found something which they were willing to construe into an admission of the claim of the plaintiff. The confessions and declarations of parties are always received with distrust, and should be closely scrutinized; but when got up as these were, from an unsuspecting old man somewhat deaf, and drawn out by a designing son and noted by a willing if not an anxious witness, they should have no influence at all in a doubtful case; and it is only in very doubtful cases that they would be resorted to. The acts of the old gentleman upon the occasion give the lie to every presumption sought to be drawn from his declarations that he then supposed that the relation of trustee and cestui que trust existed between him and his son in respect to the property in question; for he distinctly refused to acknowledge any claim on the part of the son. The conduct and manner of the witness while under examination, and the pertinacity with which he refused to speak of the interview except from his memorandum, tend still further to detract from the credit to be given to his testimony. The other witnesses present at the same interview give a different version of the conversation and declarations of the parties, and I must say apparently somewhat more natural. The conversation, as related by Webb, is certainly very formal, forced and unnatural, and I may add improbable.
III. But if the plaintiff has succeeded in establishing every fact which he claims to have established by the evidence of Ely and Webb, still he has failed to entitle himself to a decree in his favor. (1.) The evidence is incompetent to engraft upon the deed any condition, limitation, or reservation inconsistent with its terms. (Webb v. Rice, 1 Hill, 606; S. C. in error, 6 Id. 219. Swick v. Sears, 1 Id. 17.) (2.) Parol evidence was inadmissible to establish a trust. It is provided by 1 R. L. 79, § 12, “ That all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party who is or shall be by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.”
IV. But it is insisted that this case is taken out of the statute, by a part performance of the trust by the defendant. There are several difficulties in this part of the plaintiff’s case. (1.) I find no case in which the doctrine of part performance has been applied and held to take the case of a trust of real estate out of the statute; and courts have not recently been astute to discover reasons to evade the statute of frauds, and have been unwilling to extend the doctrine of part performance to new cases. (6 Paige, 293. Story’s Eq. Jur. §§ 765, 766. 3 Vesey, 712, 713.) (2.) The doctrine of part performance is based upon the principle that it would be inequitable, and a fraud on the part of the individual insisting upon the statute, to rely upon it after having, by his acts, induced his adversary to do acts in part performance of a parol agreement and upon the faith of its full performance by both parties, and for which he cannot well be compensated in any manner except by a specific performance of the agreement; and hence the acts of part performance which are (not to take the case out of the statute but) to estop a party from insisting upon it, must be on the part of the person asking a performance, and not of the person insisting upon the statute. For if the latter chooses to waive the benefit of his acts of part performance, his adversary has no claim for relief founded upon it; and here all the acts of part performance relied upon are the acts of the defendant. (7 Vesey, 341. Roberts on Frauds, 138. Story’s Eq. Jur. §§ 759, 761.) (3.) The acts of the defendant, in the payment of the debts, are not necessarily referable to the existence of a trust. Two considerations may have operated to induce hint to pay the debts of his son. His relation to the plaintiff might 'well induce him to pay the debts, and thus save his son from reproach. The consideration for the transfer of the property, although sufficient [107]*107to support the transaction, as between the parties, might have been invalid as against the creditors of the grantor; and the payment of the debts may be considered as a part payment of the purchase money. And acts to be deemed a part performance of a parol agreement, so as to estop a party from insisting upon the statute of frauds, should be so clear, certain, and definite in their object and design as to refer exclusively to a complete and perfect agreement of which they are a part execution. {Story's Eq. Jur. § 762.) And they must be a part performance of the precise agreement set up. (Phillips v. Thompson, 1 John. Ch. Rep. 131. Parkhurst v. Van Cortlandt, Id. 273. Germans. Machin, 6 Paige, 293.)
V. The plaintiff is not entitled to a decree declaring an implied or resulting trust in his favor in the property transferred, or the proceeds thereof. (1.) Such a decree would be entirely inconsistent with the case made by his bill. It would have to proceed upon the assumption that there had been a sale of the property to the defendant, and that no part of the- purchase money had been paid; or that the property had been transferred without consideration and upon trusts which had wholly failed. Either of which positions would directly contradict the entire case made by the bill. A resulting trust for the benefit of the plaintiff is quite another and a different thing from an express - trust for the payment of debts; and under an allegation of one, the other can not be established. (1 Hoff. Ch. Rep. 49, and note.) (2.) The plaintiff is estopped by his deed with covenant warranty from claiming a resulting trust in the premises for his own benefit. Even if he might so far explain his own deed as to show a nonpayment of the purchase money, he can not, by parol evidence, do away with his covenants of warranty. (Squire v. Harder, 1 Paige, 494. Moran v. Hays, 1 John. Ch. Rep. 339.) (3.) There is an express declaration in the deed that the conveyance is for the use of the grantee, and the conveyance was for a good and valuable consideration; and in such a case there can be no implied or resulting use or trust. (Story's Eq. Jur. §§ 1197, 1199.) The case of Leman v. Whitley, (4 Russ. Rep. 422,) is cited and relied upon by the plaintiff [108]*108to sustain a claim of a lien for the consideration stated in the deed as for so much purchase money. This case is said by Judge Story to stand upon the utmost limits of the doctrine of the inadmissibility of parol evidence as to resulting trusts. (Story’s Eq. Jur. 1199, note 2.) But there is a manifest distinction between the two cases. That was the case of a naked conveyance to the father, without consideration, and for a particular purpose, which entirely failed by the death of the father; and it was not intended to vest in the father a beneficial interest for any purpose. And if he or those claiming under him should hold under the deed, there was great equity in compelling them to pay the purchase money. But in this case the facts are. entirely different, and the claim for the purchase money can not be allowed without directly establishing the trust, which is not evidenced by writing. Again; the bill is not framed with a view to such relief, and it does not at this time require the citation of authorities to the principle that relief can only be granted according to the case made by the bill, as well as by the evidence. The other cases relied upon by the plaintiff were cases of sale, and not of trust. (Hess v. Fox, 10 Wend. 436. Shepherd v. Little, 14 John. Rep. 218.) The claim for an account of the personal property is barred; 1. By the statute of limitations, and 2. By the evidence, as well as the concessions of the counsel upon the argument, that the payment by the defendant for the plaintiff exceeded the value of all the personal property received by him. The decree of the vice chancellor is affirmed, with costs.
See also 2 R. S. 137, §2.